Morrison v. Smith-Pocahontas Coal Co. , 88 W. Va. 158 ( 1921 )

MilleR, Judge :

Tbe purpose of tbe present writ is to review and reverse tbe judgment below in favor of plaintiff for $8,000.00, for personal injuries sustained while employed in defendant’s coal mine.

At tbe time of plaintiff’s injuries, according to tbe declaration and proof, be was an infant between tbe ages of fourteen and sixteen. Tbe declaration is in two counts, tbe first averring as tbe sole act of negligence tbe employment of plaintiff by defendant while tbe public schools of tbe district in which be lived were actually in session, contrary to tbe statute in such cases made and provided. Tbe second count avers tbe failure of defendant to pay into tbe workmen’s compensation fund tbe premiums prescribed by law, plaintiffs employment contrary to law as averred in tbe first count, his inexperience ancl his incapacity because thereof to comprehend the dangers and hazards incident to his employment, and the negligence of defendant to use all reasonable care and caution to instruct him as to the manner in which he should perform his work, and to warn him as to the dangers attending his employment, by reason whereof he sustained the injuries of which he complains.

The record shows no demurrer to the declaration or either count thereof, except that after the jury had been sworn to try the issue joined on defendants plea of not guilty, and during the trial, when plaintiff was permitted to amend each count so as to make the allegata and probata agree as to the manner in which he sutained' his injuries, the defendant demurred generally to the declaration as amended, not to each count thereof, which was overruled, and the trial thereon was proceeded with to verdict and judgment.

The first, second and third points of error relied on are without merit. The first and second relate to the question of variance between the allegata and probata as .to the par-, ticular manner in which plaintiff sustained his injuries, cured as we have shown by the amendments of the declaration during the trial. The third point relates to the action of the court, after the amendments, in proceeding with the trial over the objection of defendant. Citing .and relying on the case of Travis v. Peabody Insurance Co., 28 W. Va. 583. That ease has been substantially overruled in the late case of Koen v. Brewing Co., 69 W. Va. 94, holding that the question for which that case is cited did not arise therein, and that the point was obiter. The latter case gives proper construction to our statute on the subject, section 8, chapter 131 of the Code. This statute permits amendments to pleadings to meet the very case presented here, a variance between averment and proof, and provides that a continuance not a matter of right need not be had unless rendered necessary thereby. In the case at bar defendant made no motion for a continuance, and there was no surprise or cause for a continuance presented.

The fourth point of error is that the declaration as amended during the trial' in each count thereof is faulty in not sufficiently. averring the manner, time and place in which plaintiff’s injuries were sustained, so as to show defendant’s’ negligence. The time and place are averred, also, in the alternative, that plaintiff was mashed or thrown between the cars or between the cars and the rib of the coal. The form of this averment in the alternative was' to cover the case as the facts might appear from the evidence when presented to the jury. The primary act of negligence alleged is the employment of plaintiff contrary to law. The manner in which the injuries were sustained, assuming the declaration to be good, is unimportant. In the second count the primary negligence alleged is the failure of defendant to instruct plaintiff, because of his youth and inexperience, how to do the work and avoid injury. Such averment of negligence furnishes the basis or predicate for the evidence of all such incidental facts and circumstances of omission or commission as fairly tend to establish the negligence of the primary act, according to the cases cited by defendant’s counsel. Snyder v. Wheeling Electrical Co., 43 W. Va. 661; Veith v. Hope Salt & Coal Co., 51 W. Va. 96.

The fifth point of error affirmed by defendant’s counsel is that the court erred in refusing to allow it to prove by its superintendent and mine boss that plaintiff’s size and appearance and what he said indicated that he was eighteen years of age and an experienced brakeman. The evidence of these witnesses shows that they were in doubt, and questioned the plaintiff and required of him the statutory affidavit of parent or guardian that he was of the age rendering it lawful for him to be employed in or about a coal mine, and there is some evidence tending to show that they did get some sort of a certificate, not an affidavit, of a brother-in-law of the plaintiff, not his parent or guardian, consenting to his employment, but this certificate was not produced. In Norman v. Virginia-Pocahontas Coal Co., 68 W. Va. 405, and Blankenship v. Ethel Coal Co., 69 W. Va. 74, we distinctly held that the fact that such employee or his parent has misrepresented his age does not preclude recovery; so held in construing our statute, sections 24 and 25, chapter 15H of the Code, which does not excuse an employer from requiring the affidavit because of the appearance or false representation of the employee or his friend as to his age. To be protected the employer is bound to require the proper affidavit of parent or guardian.

A sixth proposition presented by counsel is that the court below committed prejudicial error in permitting one of defendant’s expert witnesses to be asked and to answer, on cross-examination, whether if some other expert who did not testify in the case had given it as his opinion that the particular condition of plaintiff was caused by the injury sustained, he would say such opinion was correct or incorrect. Counsel for plaintiff say the question and answer were not objected to. We find with respect to the testimony of Dr. Hunter, one of the experts, there was an objection and an exception, but with respect to the evidence of Dr. Wood, the other expert, there was no objection or exception to the question asked him, nor to his answer thereto, which was favorable to defendant. However, the opinions of the experts not examined by plaintiff were brought out on cross-examination of plaintiff by defendant’s counsel, wherefore we can see no error in the rulings of the court of which defendant can explain. The seventh proposition is covered by the sixth, and we make the same reply.

The eighth proposition urged, and the only one argued by defendant’s counsel, is that the violation of the statute against employment of minors within the prohibited ages does not constitute actionable negligence unless such violation thereof is the proximate cause of the injury; that an employer as a matter of law is not chargeable with all injuries that result during the unlawful employment, but is liable only for those injuries against which the statute is intended to guard. And the argument is that sections 33, chapter 10, Acts 1915, prohibiting the employment of boys between the ages of fourteen and sixteen years, was not intended to protect them from personal injuries as was section 32 thereof, inhibiting the employment of boys under the age of fourteen years, but that its purpose was to provide. for their education and protect them therein. Our answer to this proposition is that the question does not seem to fairly arise on the record. A demurrer to the first count would likely have presented the question, but so far as the record discloses there was no demurrer to either count until after the trial began, and then the demurrer after the amendments were made was general and not to each count, and as the second count is concededly good, the demurrer was properly overruled. The question might have been presented by instructions, but though the order giving judgment on the verdict and filing the only bill of exceptions, No. 1, indicates that instructions to the jury were given and refused, no such instructions appear, and the bill of exceptions does not purport to contain"or identify any such instructions. Nor does the question arise on the motion for a new trial, for as the second count is good and there was evidence introduced sufficient to support the case made thereby, we cannot say the verdict is not well founded on pleadings and proof.

It is true, the defendant proved payment of the proper premiums into the workmen’s compensation fund so as to protect against damages sustained by anyone lawfully employed in its mines. But as the jury must have found the plaintiff was unlawfully employed while the schools in his district were in session, defendant was not protected against action by plaintiff by the workmen’s compensation fund. The protection given by the statute' does not extend to persons unlawfully employed. Section 9, chapter 15P of the Code, specifically provides that the act shall not apply to employers of employees whose employment' is prohibited by law. And we have recently decided that in cases not failing under the compensation law the common-law rights and liabilities of employer and employee must control in actions of negligence. Barnett v. Coal & Coke Ry. Co., 81 W. Va. 251.

Wherefore, we must affirm the judgment.