84 W. Va. 499 | W. Va. | 1919
The action is ex delicto for the loss of plaintiff’s hand, due to the alleged negligence of defendant in furnishing him a defective meat grinder and his failure to furnish him a feeder paddle or other implement necessary safely to operate said machine in the course of his employment.
From the verdict and judgment' fob plaintiff for one thousand dollars the defendant by writ of error has brought the case here for review.
Secondly, it is argued that if defective, the circumstances of the injury show that plaintiff had as much knowledge of the machine as defendant and with such knowledge continued to operate it, and thereby contributed to his own injury and excused the defendant. But, if, as substantially averred, the defendant’s business andl the plaintiff’s employment fall under the operation of the Workmen’s Compensation Law, and ' defendant failed to comply therewith, contributory negligence constituted no defense to the action. However, the declaration avers as to the feeder paddle that plaintiff was in. fact ignorant of the defect alleged until he requested defendant to provide him with such implement, which' he failed and neglected to do. If plaintiff as alleged was ignorant of the defects in the machine, of course he could not be chargeable with contributing to his injuries by continuing to work it. We do not think the circumstances averred sufficiently negative his averment of ignorance, as urged by counsel But as to the feeder paddle the declaration does show knowledge on the part of plaintiff of the alleged need of such an instrument, for he avers that he requested defendant to furnish him with such a paddle, and his promise and failure to do so. But should he not have also averred his reliance on such promise and his belief that defendant would in a reasonable time comply therewith? We are persuaded on authority that such averment should have been made, if plaintiff relied on such negligence as a basis of recovery. Parfitt v. Veneer & Basket Co., 68 W. Va. 438, 449-450; Ashley v. Tri-State Lumber Co., 79 W. Va. 726. If, as these cases hold, a servant continues in the services of his employer after knowledge of the defect in the machinery he is employed to operate, he will be presumed to
Lastly, it is urged that the demurrer should have been sustained because the business of defendant without his election to come under it, not averred but negatived, does not, bring him involuntarily under the Workmen’s Compensa' tion Law. Both counts aver that the business of the defendant in which plaintiff was employed to assist him was that of a butcher, and in which, he made use of divers pieces of machinery; namely, boilers, engines, motors, pulleys, grinding machines, and divers other implements, tools and devices for preparing meats so butchered by him for the market, and more particularly for the grinding of said meat in order to make the same into sausage. But whether the defendant’s business so described in the declaration falls within the purview of the Workmen’s Compensation Law or not, we think on demurrer it would be good as averring a good common-law action for negligence of the defendant to use due care to furnish plaintiff a safe place to work, a good machine to work with, and to keep it in good repair, and that the. demurrer was therefore properly overruled. We should for this purpose treat the averments regarding the Workmen’s Compensation Law and defendant’s alleged negligence in failing to comply therewith as surplusage.
The remaining points relied on involve the giving and refusing of instructions to the jury, and the action of the court on the motion of the defendant for a new trial. All six of the instructions requested by plaintiff were given as offered. Of the four requested by defendant, the first and second were given; three and four were refused. Defendant complains of plaintiff’s instructions .two, three, four, five and six, and of- the action of the court in refusing his instructions three and four.
Instructions two, three and four given for plaintiff all assume that the business of the defendant and his liability-
' The question is thus presented, whether the business of' “butcher” as alleged in the declaration, or that of a genera! store in which Ms business was that of selling meats and groceries at retail with the incidental business of making sausage and rendering lard in the small way described in the evidence, brought the defendant under the involuntary requirements of the statute so as to render him liable to the plaintiff and the
The first inquiry then is, does the business of butcher alleged, or that of selling meats and groceries in a small retail store, such as the evidence discloses in this case, though the meats sold are in whole or in part of animals slaughtered by :such retail merchant, fall within schedule “n” of section 18, namely, “slaughter and packing houses, stock yards, soap, tallow, lard and grease manufactories, tanneries, * * * in which power driven machinery is used?” In our opinion such a business does not come within the provisions of this section. If so, then every little merchant who happens to butcher a few animals whose meat he cuts and retails to his customers in a grocery store, of which there are many, would be brought under the act. Perhaps, as counsel argue, the size ■of the business ought not to be regarded as controlling in the construction of the statute. A statute like this in derogation of the common law, and imposing restrictions upon common occupations of the people, should receive a strict construction. Rhodes v. Coal Co., 79 W. Va. 71, point 3 of the
In further support of their proposition counsel for plaintiff rely on the expression of this court in Louis v. Smith-McCormick Construction Co., 80 W. Va. 159; and Adkins v. Hope Engineering & Supply Co., 81 W. Va. 449, respecting the broad and inclusive scope of section 9 of the act. While in these cases reference is made to the wide scope of this section, the business of the defendant in the first case clearly fell within schedules "v” and "w” of section 18; and in the latter case no question was made as to the fact that defend
But What effect should be given to'schedule “x”, read in connection with said section 9 ? Clearly this schedule, which is made to cover “any industry or business not specified in the foregoing schedules, for which an employer shall voluntarily apply to the commissioner to be brought under the provisions- of this act, ’ ’ does not bring such omitted industry or business under the act without the voluntary application of the employer. To be brought under the act such employer must apply to the commissioner, who must give him a classification and - rate of premium, unless, the commissioner as he possibly may do under a subsequent provision of the schedule,, himself bring such employer under the act by exercising the-power thereby conferred. In these provisions the statute clearly recognizes the two classes; namely, first, those brought under the act involuntarily as it were by being named in the several schedules, and required to comply therewith upon pain of being denied their common-law defenses; and second, those submitting themselves voluntarily, and when so doing, all are subject to the act within the meaning of section 9; but the voluntary classes without such submission, or the special act of the commissioner, do not become subject to the act. Nor is such voluntary class of employers ■ denied any of their common-law rights for neglecting voluntary submission to the statute. Analogous to the case presented here, is that of Barnett, Adm’r. v. Coal & Coke Ry. Co., 81 W. Va. 251, where we held that section 26 of the, statute did not operate to deprive employers engaged in both intra-state and inter-state businesses, unless and until, from the time they had elected, as they might under section 52, by the metnod pre
Onr conclusion, therefore, is that plaintiff’s instructions two, three, four and six, ignoring and excluding defendant’s theory of contributory negligence, and holding him subject to the Workmen’s Compensation Law, were erroneous and should have been rejected.
Plaintiff’s instruction number five, we think, states the law correctly relative to the liability of the master for failing to comply with his promise to remedy dangerous and defective machinery and to provide a reasonably safe place to work; but as we have already observed, the declaration was defective in not averring reliance of the plaintiff on the defendant’s promises and his failure to comply therewith in a reasonable time.
Defendant’s instruction number three was, we think, rightly refused. It would have told the jury that if they believed from the evidence plaintiff was a general clerk in defendant’s store and performing his duties set forth in the declaration, and as such clerk had access to and right to use the feeders or feeder paddles in said store as are named in the declaration and could have taken and used the same in the performance of his duties, and did not do so at the time of the accident, the jury should find for the defendant. The principal vice of this proposition is that it assumes the fact that there were in the store feeder paddles suitable for such use, or any feeder paddles, facts as to which there was little if any appreciable evidence offered by defendant, and facts which were denied by plaintiff. Whether the defendant was negligent in failing to furnish such an instrument, if one was not provided, or was in the store at the disposal of plaintiff, were questions which might properly have been submitted to the jury by a proper instruction. But the instruction in question was not competent in this respect.
Defendant’s instruction number four, we think, states a correct legal proposition applicable to his theory of the case. It would have told the jury that if they believed from the evidence that plaintiff knew there was a rapidly revolving screw at the edge of the lower hopper of the sausage grind
For the foregoing reasons, the judgment below must be reversed, the verdict set aside, and the defendant awarded a new trial. Reversed and remanded.