Humphries v. Coal Co. , 115 W. Va. 768 ( 1934 )

It seems to me that the legality of the contract between the defendant and the county court does not properly arise in this case. That was a question in which the defendant, the court and the taxpayers alone were interested. The plaintiff, as a taxpayer, could have raised the question in a timely proceeding. But as a stranger to the agreement he is not entitled to do so at this late day, merely to advance a personal demand. The general rule is well established that "It is only the parties to a contract that have a right to question its validity." Woodruff v. Board,10 Ind. App. 179, 37 N.E. 732. Accord: Ellsworth v. Mitchell,31 Me. 247; Newcomb v. Ingram, (Wis.) 248 N.W. 171, 174;Owens v. Davenport, 39 Mont. 555, 104 P. 682; Green v. Johnson,151 Ill. App. 63; Ex parte Banks, 185 Ala. 275, 279, 64 So. 74,75. While admitting freely that a void contract such as the one here is no contract, the Supreme Court of Alabama says in theBanks case: "As contracts which are rendered void by the statute of frauds are not void as immoral or evil in themselves, but merely because offensive to the policy which the statute establishes, it has always been the rule of this court to allow no one to avail himself of the invalidity of such a contract, unless its invalidity * * * was pleaded by a party or a privy to such contract."

Moreover, the defendant did not merely "claim" an understanding with the county court as the majority opinion indicates. The defendant proved the understanding by members of the court itself. (The omission to enter the agreement on the court's records did not of itself nullify the agreement. Barbor v. County Court, cited in the majority opinion, does not so hold.) The changing of the creek channel was shown to have been not an act of indifference or carelessness on the part of the defendant, but a natural incident of the construction. The change was just as visible to the court as it was to the defendant or to the plaintiff. Yet after the change was made and the construction completed, the road was accepted and hard surfaced by the court, and has been used and enjoyed by the public ever since. While payment for the work was unenforceable, I cannot follow the majority view that "the act performed is unlawful." That no funds are available to pay for work authorized by public officials cannot make the worker a law breaker. Suppose the defendant had agreed to construct the road free of charge. No one would say that the defendant became a trespasser simply because the construction was gratuitous. The following facts should not be ignored: the roadway was under the control of the court; the defendant worked on the roadway in good faith, under the authorization of the court; and the court accepted and appropriated to public use the results of that work. I cannot see that lack of funds to pay for the construction prevented the formation of a de facto relationship of employer and employee. A case illustrating my position isSmith v. Dryden, 15 Cal.App. Rep. 568, 115 P. 455, in which the court held in regard to a contract made void by a statutory provision, as follows: "Though a contract not filed for record is void for the purpose of an action thereon, nevertheless it stands effective as showing * * * the authority of thecontractor, the nature and extent of his employment," etc.

An employee performing work in the manner of the defendant herein is an independent contractor. Greaser v. Oil Co., 109 W. Va. 396,155 S.E. 170; Klipstein Co. v. Commissioner, 113 W. Va. 567,169 S.E. 169. The established rule applicable in cases such as this is as follows: "The general rule is that where an independent contractor is employed to construct or install any given work or instrumentality, has constructed or installed same, the same has been received and accepted by the employer, and the contractor has been discharged, he is no longer liable to third persons for injuries received as a result of defective construction or installation." Wood v. Sloan, (N.M.)148 P. 507, 508. Accord: Young v. Smith Co., 124 Ga. 475, 52 S.E. 765; Annotation 32 L.R.A. (N.S.) 969; 16 A. E. Ency. Law, subj. Independent Contractors, p. 209; Moll, idem, sec. 228; Cooley on Torts (4th Ed.), sec. 498; 45 C. J., subj. Negligence, sec. 320. There are some well recognized exceptions to the rule, but none of them apply here.

Therefore I respectfully dissent.