The Clarksburg telegram. [volume] (Clarksburg, W. Va.) 1874-1926, 1912-04-25
FOREMAN
Is a Fellow Servant Unless
He is Negligent in
Certain Duties.

CHARLESTON, April 1S-The
foreman OF a crew OF laborers en-
ployed tc 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-delegable duty
which the master owed to the IN
jured servant. Whether a superior
servant is vice 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
Brannon, 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 driller in a quarry of the Berke-
ley Limestone Company. While at
his work on July &c, 1907, he was
injured by rock falling on him,
and died little later from the in
juries. Mlller'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
tanned a writ of error. The plaintir
declares that the accident was largely
due to the negligence of the fore
man CT the quarry. but on this point
the supreme court says:
III Tenas Milburn, the foreman,
deceived deceased by assuring him
that he had examined the rock and
that it 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 Milburu, although a foreman
over deceased, was only his fellow
servant. In ordering deceased to
work in a place of danger Milburn
was not representing defendant in
relation to a non-assignable duty;
and was, therefore, not vice prin-
cipal.
at not being shown that the de-
fendant was negligent in any re
spect, the question Of contributory
negligence on the part OF the de-
ceased becomes immaterial"
Other points in the case also
make the relation OF the respective
parties clear. "All laborers 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
as fellow servants"
And again the decision holds that
1.-the master is not liable, as for neg
ligence in failing to furnish a rea-
sonably safe place to work, for in
jury received in quarry, by stone
falling upon him from the bank or
clif 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 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 a fire insurance policy, tc
TO make a loss by fire total under
the valued policy act, the building
need not he utterly destroyed ant
extinguIshed. If Its identity is gone
1 If its remnant can not be used as
basis or repair or restoration, tn
loss is total, calling for full payfnen
of the amount OF insurance fixed b!
the policy"
This was the holding of the su
preme court in the case OF Hinkl
VS.. North River Insurance Company
in which the circuit court of Ran
dolph county was affirmed in al
opinion written by President Bran
non.
Rebecca Hinkle and C. f. Madison
sued the Mort River Insurance Com
pany to recover for loss from IN
burning of a frame building unae