Plymouth Coal Co. v. Kommiskey

9 A. 646, 116 Pa. 365, 1887 Pa. LEXIS 401

• Court: Supreme Court of Pennsylvania
• Decided: May 16, 1887
• Docket: No. 74
• Status: Published

Opinion

Opinion,

Mr. Justice Clark:

The Plymouth Coal Company, in the year 1885, was operating an anthracite coal mine, known as the Dodson mine, in Luzerne county. John B. Davis employed the miners for the company, and was the inside foreman; Walter Lance had charge of the accounts, and paid the men.

The plaintiff, Adam Kommiskey, was employed as a laborer by one Bothers, who, it seems, had a contract with the company, by the terms of which he was to furnish his'own laborers and supplies, and to mine coal and drive headings at certain prices, viz., seventy-six cents per car for coal, and $1.65 per yard for headings. Kommiskey was hired by Bothers as a laborer to assist him in the work, at the rate of $2.12 per shift. He does not pretend to have been in the direct service of the company; he admits that he was employed by Rothers, and having entered into contractual relations with Rothers for the work, no promise would ordinarily be implied on the part of the company to pay the price.

It appears, however, that when the laborers’ time was “turned in,” the usage of the company had been to pay the laborers and charge the amount to the miner’s account; this would seem to have been the company’s general mode of doing business. The “turning in” of the laborers’ time by the miner was in legal effect an order on the company to pay the amount; and the company, recognizing this form of settlement between the miner and his men, paid the men as if they had been in the company’s service.

Of course, under such circumstances, there was no primary liability on the part of the company to Kommiskey as for work or labor done; if there was any liability at all on the part of the company, it arose by implication from the company’s general mode of doing business with the men aud the miners. If the company had adopted and followed a general rule or regulation to this effect, upon which laborers relied for payment of the price of their labor, it would, perhaps, be bound at least to the extent of the balance in its hands without any formal acceptance of liability; but that obligation could only exist when the laborers’ time had in fact been turned in before the miners’ account had been fully drawn.

If there was any evidence in this case that Kommiskey’s time had been turned in to the company by Rothers, that evidence was for the jury; it was certainly clear error for the court to give binding instructions that the plaintiff was entitled to the verdict. The plaintiff is a Hungarian. His knowledge of the English language appears to have been very imperfect indeed. He stated that when he called upon the company for his money, he had with him an interpreter, named Joseph, and that Mr. Lance, the company’s paymaster, told him that his time was “ turned in,” but the miner (Rothers) had taken everything out of the store.

From a careful examination of his testimony, however, it is very uncertain whether he understood Lance, or whether he derived his impressions of what Lance said from his interpreter. Joseph, the interpreter, ■ was not produced as a witness to state what Lance said on that occasion, and proof of his declarations were of course incompetent. On the contrary, Mr. Lance testifies that Kommiskey’s time was not turned in; that the company was not authorized to pay for his labor, and that, in fact, he did not know that Kommiskey was in Rothers’ service until after Rothers had drawn the money in full. The testimony of Davis is substantially to the same effect.

It was Kommiskey’s duty to see to it that Rothers had made a proper return of his labor to the company; he could have no possible claim upon the company unless it was so returned, and whether it was or not, was certainly for the determination of the jury and not for the court.

The judgment is reversed, and a venire facias cle novo awarded.