The daily telegram. [volume] (Clarksburg, W. Va.) 1901-1926, 1912-04-19
EIIBE MAN
Is Fellow Servant Unless
He lis Negligent ii
Certain Duties.

CktAiEtbkST0Ns April 1S-fht
foreman Of a crew Of laborers en-.
ployed to work in stone quarry,
who has power to employ and dis
charge men and to direct their
work, is. nevertheless, only fellow
servant, unless his negligence re
lates to some non-delegabls duty
which the master owed to the IN
jured servant Whether a superior
servant is avice principal depends
upon the nature of his negligent act,
and not upon his grade or rank, .
says the supreme court Of appeals in
an opinion written by President
Rrannon, in the case Of Miller. ad.
ministrator, vs.. the Berkeley Lime
stone Company. from Berkeley coun-
ty, and in which the decree OF the
lower court was affirmed.
John w. H. Miller was employed
as a drtller in a quarry Of 1.-THE Berke-
ley Limestone Company. While at
his work on July 16, 1907, he was
injured by a rock falling on him,
and died little later from the in
iuries Miller's administrator
brought suit against the limestone
company, alleging negligence on the
part of the company. The lower
court rendered Judgment in favor of
the company and the plaintiff OBJ
taihed a writ OF error. The plaintiff
declares that the accident was largely
due to the negligence of the fore
man of the quarry, but on this point
the supreme court says:
'h1f Tenas Miiburn, the foreman,
deceived deceased by assuring him
that he had examined the rock and
that 1T was safe. and thereby lulled
his fears and led him into a danger
which he would not otherwise have
assumed, defendant is still liable.
for Mitburn, although a. foreman
over deceased, was only his fellow
In ordering deceased to
work In place OF danger Milburn
was not representing defendant in
to non-assignab1e duty;
and was, therefore, not a vice prin-
cipal.
at not being shown that the de-
sendant was negligent in any re-
spect, the question of contrtbutory
on the part of the de-
ceased becomes immaterial."
Other points in the case also
make the relation of the respective
parties clear. "All 1aborers EN-.
ployed by a common master to work
IN a stone quarry, whether their
duty be to drill, to shoot off blasts,
or to remove loose stones from the
cliff, stand in relation to each other
rs fellow servants"
And again the decision holds that
'the master is not liable, as for neg
ligence in falling to furnish rea-
sonably safe place to work, for in
jury received in a quarry, by stone
falling upon him from the bank or
cliff above, occasioned by the labor
performed in operating the quarry.
Such an accident was a risk assumed
by the servant"
In the last point OF the syllabus
the decision holds that Sin the alb
sence OF the masters negligence in
selecting his foreman he is not liable
for injury to a servant who was led
into danger by a false assurance OF
safety from the foreman, unless the
negligent act of the foreman relates
to the masters non-delegable duty. :"
An Insurance Case.
"Under fire insurance policy, to
to make loss by fire total under
the valued policy act, the building
need not be utterly destroyed and
extinguished. If its identity is gone,
If its remnant can not be used as a
basis or repair or restoration, the
loss is total, calling for full payment
of the amount OF insurance fixed by
the policy"
This was the holding of the. SUI
preme court in the case OF Hinkle
VS.. North River Insurance Company,
in which the circuit court of Ran
dolph county was affirmed in an
opinion written by President Bran
non.
rRebecca .Hinkle and C. E. Madison
sued the Mort River Insurance Com
pany to recover for loss from the
burning of frame building, under
an insurance policy issued by that
company, and upon a motion to
strike out the plaintiffs evidence
and demurrer to that evidence,
judgment was rendered for the
plaintiffs, and the insurance COM
pany sued out a writ OF error. The
company fled notice or statement
that tho daFanSa would he nOn-cori-