Bullock v. Gaffigan , 100 Pa. 276 ( 1882 )

Mr. Justice Green

delivered the opinion of the court, May 1st 1882.

The plaintiff in this case is the widow of John Gaffigan. The action is brought to recover damages for the death of the plaintiff’s husband, who was run over by a detached coal car at the foot of a slope in a coal mine in Luzerne county. The defendants are certain individuals who are sued in their proper names, but charged as partners doing business as The Beaver Brook Coal Company. The right of recovery is based upon the theory that the deceased was a laborer in the employ of the defendants as master. The allegation of the plaintiff as to the cause of the injury is, that it was the result of a defect in the wire rope and its connections used in the moving of the coal cars up and down the slope of the mine. The technical liability of a master for defects in the apparatus provided for his -workmen, is therefore the sole basis of the right of action. It will be perceived at once that the existence of the relation of master and servant is absolutely indispensable to the plaintiff’s case. The absence of that relation is fatal to the action. On the part of the defendants it was claimed and .proved that they were not, and never had been, partners doing business under the name of The Beaver Brook Coal Company. They also alleged and proved that The Beaver Brook Coal Company was a corporation, established by articles of association dated August 15th 1870, and charter issued in pursuance thereof, and gave in evidence the articles and the charter. They also proved that E. L. Bullock, one of the defendants, was the superintendent of collieries in the employ of The Beaver Brook Coal Company, that Charles. M. Dodson, another defendant, was the president of the company in 1876, when the accident occurred, that Abram S. Schropp, another defendant, was secretary and treasurer, and that Frank C. Stout, the remaining.defendant, was a director of the company. They further proved that The Beaver Brook Coal Company was the lessee of the mine in question and was working it at the time of the accident. Abraham S. Schropp, one of the defendants, testified as follows:

“ Q.' What collieries has the company worked since that time, July 1870 ?

“ A. The Beaver Brook Coal Company; that is situated about a mile from Audenried, Luzerne county ; they have two slopes. I know nothing about this accident, except that it occurred in the colliery worked by that company.”

It was also proved that The Beaver Brook Coal Company put up the breakers on the property in question and paid for them,was the owner of all the personal property on the premises, and that the same was purchased and put there about the time the company started, and has belonged to the company since 1870. The defendants further offered to prove the length of time the company had been in possession and working the mines, but for some unexplained reason were not permitted to do so. It was further proved that Mr. Schropp, the secretary, had opened books for the company in 1870 and kept them continuously up to the time of the trial, and that the company was in active existence on the 4th of April 1876, when the accident occurred. Against all this evidence the plaintiff gave no testimony whatever. The proof was entirely uncontradicted. More than this, the plaintiffs have counted only upon a liability of the defendant as partners. Yet she gave no evidence to prove that the defendants ever were partners in any business or under any name, or that they, either as partners or as individuals, were in actual possession and operation of the mine. It is almost unnecessary to add that no proof was given that the plaintiff’s deceased husband was employed by the defendants either as individuals or partners, or that the relation of master and servant had any existence between them in any form or for any purpose. We have read over carefully the whole testimony in this cause, and are constrained to say there is not even a scintilla of evidence proving or tending to prove this essential, vital fact. On the contrary, the testimony given by the plaintiff, so far as it relates to this subject, strongly eorroboi'ates that of the defendants. Thus Daniel Gallagher, one of the plaintiff’s witnesses, testified that E. L. Bullock was general superintendent t-liere at that time, and had charge of everything and signed all the bills as superintendent. Thomas Davis testified, “ The general snperintendant of that company was a Mr. E. L. Bullock.” Adam Weisburger said, “ E. L. Bullock was the general superintendent there, Mr. Davis was the outside foreman there.” T. D. Jones, another of plaintiff’s witnesses, a mine inspector, says: “ I did not notify the officers of this corporation before the accident.” In this state of the testimony there is absolutely nothing upon which a right of recovery against these defendants can be based. The deceased never was the servant or employee of the defendants, so far as anything appearing on this record is concerned, and therefore no action can be sustained against them on the theory of the existence of that relation. Entertaining these views we sustain the assignments of error numbered 10-¿-, 11, 12, 14, 15, 18, 19, 20, 21, 22, 24, and upon these the case is reversed. The court should have directed the jury to return a verdict in favor of the defendants. It is unnecessary to consider the remaining assignments.

Judgment reversed.