
    Grubb v. Coleman Fuel Co.
    (Decided March 1, 1938.)
    GOLDEN & LAY for appellant.
    WALTER B. SMITH and HARRIS W. COLEMAN for appellee.
   Opinion op the Court by

Stanley, Commissioner

Reversing.-

The appellant, Walter -Grubb, has sued the appellee, Coleman Fuel Company, for damages resulting from the loss of his eye. The defendant had not elected to operate under the Workmen’s Compensation Act, Kentucky Statutes, sec. 4880 et seq. On a trial before a special judge, two issues were submitted to the jury, one of which was whether Obie Stewart, whose act caused the injury, was an employee of the defendant, and the other whether that act constituted negligence. The verdict was for the defendant.

Each miner was assigned a number and given metal discs showing same. They would be hung upon the cars he had mined-and loaded to identify them. When the coal was weighed at the tipple, he would be credited with the tonnage and paid accordingly. It appears that two men were assigned to a certain room or space and it was regarded as their exclusive privilege to work •there for the time being. The record- does not show that Stewart had worked in this mine before he was given his numbers and assigned a place on the fourth entry by the president of the company two or three weeks before the accident. However, when he went to. the place he found that the foreman had previously given it to Collis and Obie Stewart. They permitted him to work with them four or five days. He then asked Jackson, the foreman, if he had any other place for him and Jackson responded, “No, if you can find any place it is more than I can do; it is all right with me if you can find a place.” That evening Stewart asked Grubb and Hoskins, who had been assigned to the third right entry, to let him work with them. They at first refused, but consented the next day when Stewart again asked to be permitted to work with them for a few days, and said he would work for enough coal to average him $2 a day until the place which the boss had given him was turned loose. They agreed to allow him to put his numbers on enough ears of coal to make $2 a day. He did this and received credit on the books of the company and was paid accordingly. Stewart had been working in this place with these men, as was known to the foreman, five or six days before the accident happened. As we understand, Grubb and Hoskins were receiving yardage also. This is compensation measured by the number of yards mined out and was in addition to the tonnage. But Stewart did,not ask for any of this pay, although he helped to drive the entry.

C. R. Coleman, tbe president of tbe company, testified tbat men were employed by bimself or bis foreman, and tbat be did not know just wbo was working in tbe mine as some of tbe men were in and some out part of tbe time. They would get tbeir numbers from bim before be would let them go to work. Those wbo bad numbers were employed in tbe mine if they bad a place for them, and sometimes they would be out for a week or two. No one was supposed to have a number except those to whom be bad given it, but many did not return tbeir tags when they quit. It is significant, we think, tbat Stewart bad received bis number only a short while before this accident. Over objection of tbe plaintiff, Coleman testified tbat be did not know Stewart. was working for tbe company and tbat be was not an employee at tbe time. However, be testified to having, given bim a number and telling bim be could have a place on tbe fourth panel entry, but tbat tbe foreman bad assigned tbat place to another so Stewart was out of work. Notwithstanding this testimony, tbe witness stated that at tbe time Stewart’s name was on tbe company’s books and be bad been given credit for tbe coal be bad mined with Grubb and Hoskins and bad been paid for it. Tbe company bad tbe right to discharge any man working in tbe mine. After tbe accident, be bad beard Grubb say tbat be bad an agreement with Stewart to allow bim to load $2 worth of tbeir coal a day “working for them.”

Jackson, tbe foreman, testified tbat be bad directed Stewart to work in tbe fourth panel and had not assigned bim to work with Grubb and Hoskins. He bad visited tbe mine daily, however, and bad seen Stewart working with those two men. He bad no objection to' this; never told Stewart to get out; and treated bim like any other employee. It was tbe custom in tbe mine and among tbe workmen to trade jobs, and go from one place in the mine to another. Stewart bad worked in mines for sixteen years and as a miner and coal loader for five years. Jackson testified tbat be was- a good loader.

At tbe time of tbe accident, Grubb, Hoskins, and Stewart were engaged in loading a car in tbe mine. Grubb bad said that' be would load .the front end and told Stewart be could load tbe back end. They were on opposite sides of tbe car, one near tbe front and tbe other at tbe back. When the car was level full, Stewart threw a shovel of coal toward the front, which went too far and landed at the opposite side, part of it falling on the car and part of it off. Some of the coal struck.Grubb in the face. He got some particles about the size of a pencil point out of his eye. He reported the accident the next day to Mr. Coleman, who put soma medicine in his eye for several days, according to Grubb. Mr. Coleman, however, states that it was several days later when he happened to see Grubb, who apparently was suffering with his eye, and he suggested that if he would come to the office he would put something .in it to prevent infection. A day or so later he advanced enough money to Grubb to enable him to visit some doctors. The doctors testified the loss of the sight was caused by traumatic injury.

On the question of Stewart’s relation as servant and the defendant as master, the evidence, in short, is that he was employed by the company to work when there was a place for him and was to be paid according to his output. Because there was no special place for him at the time, he was working with two other -employees, with the acquiescence of the company, under an agreement -that, except to the extent of earning $2 a day to be paid him by the company, he would give those men the benefit of whatever work he did worth more than that amount. He could have been discharged by the company at any time and put out of the mine. He was recorded on the books and paid by the company for Ms reported output.

The appellant’s argument is that there was not a scintilla of evidence against his contention to take this question to the jury; that the verdict is flagrantly against the evidence; and was induced by the admission of the opinion of Coleman that Stewart was not an employee of the company at the time which he contends was incompetent. The same contention of being fla- ■ grantly against the evidence is made as to the issue of negligence.

The question of whether Stewart was an employee or not was to be submitted to the jury for its conclusion. Whether a man is an employee or not so as to bind another by his act is a legal question, the facts, if in conflict, being for the jury to determine. But in common parlance and talk among laymen, whether one is an employee or not is simply whether he has been hired. This was doubtless what the witness meant and the jury understood. Having related the facts and transactions, we do not deem it error for the court to have failed to exclude the statement.

The question was whether Stewart at the time had the legal.status of a servant of the defendant company or of Grubb and Hoskins, operating as independent contractors. There was really no conflict in the factual evidence showing Stewart to have been the servant of the defendant. "We think the appellant’s claim that the verdict on this point is flagrantly against the evidence is good. Interstate Coal Company v. Trivett, 155 Ky. 795, 160 S. W. 731; Borderland Coal Company v. Small, 160 Ky. 738, 170 S. W. 8; Bon Jellico Coal Company v. Murphy, 161 Ky. 450, 171 S. W. 160; Summerville v. Waller, 262 Ky. 343, 90 S. W. (2d) 65; Clendenin v. Colonial Supply Company, 267 Ky. 544, 102 S. W. (2d) 992; Klein v. Lakes, 269 Ky. 43, 105 S. W. (2d) 1041.

On the question of negligence, we reach the same conclusion. It must be remembered that since tbe defendant was not operating under the provisions of the Workmen’s Compensation Act it cannot rely upon the defense of the fellow-servant rule. Section 4960, Kentucky Statutes.

The appellee submits that since the appellant offered the instructions which the court gave, as to whether Stewart was the employee of the defendant, he invited the; error, if any, and cannot be heard to complain. The appellant is not complaining of the instructions or of the submission of the issue. It was a concession that there was a scintilla of evidence or enough to take the case to the jury, but under our rule of long standing a verdict may be set aside as flagrantly against the evidence even though the question should have been submitted. We do not think the appellant iu estopped to make the point.

No other question than those decided is passed upon.

Judgment reversed.  