CHAPTER XXIV. RIGHTS AND DUTIES OF MINE EMPLOYERS AND EMPLOYEES. SECTION 386. Character of the relation. 387. Contract of hiring. 388. Wages- How paid. 389. Owner should furnish safe machinery. 390. Should furnish suitable employees. 391. Same-Negligence of fellow-servants. 392. Same- Who are fellow-servants in a mine. 393. Same-Master acting as workman. 394. Acts of independent contractor. 395. Owner should furnish means of ingress and egress. 396. Duty as regards place of work. 397. Same-Liability for "falling scales." 398. Same-Injuries from "cave-in." 399. Employee assumes dangers incidental to work. 402. Acts resulting in death. 403. Contributory negligence in employee. 404. Employer's liability to third persons. 405. Termination of the service § 386. Character of relation. The relation of mine owner and employee is similar in law to that generally discussed in the text-books under the head of master and servant, and while the law governing the master and servant is not, as a whole, sufficient to adjust the relative rights and duties of the mine owner and employee, the law governing the actions and rights of individuals occupying the former relation has been so extended and enlarged from time to time, that many, if not most of the civil injuries which occur to parties acting in the service of other persons, with a very few exceptions, are included under and embraced within the general scope of the law which originally applied to the master and persons engaged in his service who occupied but an inferior or subordinate pos tion. As in the case of the master and the servant, the mine owner is generally responsible for injuries that his employees may receive by reason of his failure to use that care and prudence which the hazard of the business and his own position would call for, or which are but the approximate cause or natural consequence of his own neglect or carelessness. It is also considered negligence in the master or owner to knowingly permit any peril to continue that renders the employment more hazardous, and which could be removed by him. And while knowledge of the servant or employee and his right to quit the service and thus avoid the dangers of his employment, would seem to diminish the liability of the owner; still the latter may be held responsible for an injury to the servant after he has assured the servant that he will have the dangers removed, for until he makes his assurance good and has the danger removed in accordance with his promise, he is not in the exercise of that care and prudence which the nature of his position requires.5 1 For a full discussion of the changes and extension of this doctrine by the courts see Cooley on Torts, 43, 146, 622 et sub. Tiffin v. McCormack, 2 Mor. Min. Rep. 194. 2 Cox v. Great West. &c. Co., 9 Q. B. 106. But an employer car relieve himself by agreement from responsibility under the Eng. Em. Lia. Act. See Griffith v. Earl Dudley, L. R. 9 Q. B. D. 357. But see Little Rock Co. v. Eubanks, 3 S. W. Rep. 808; Kansas &c. Co. v. Peavey, 29 Kan. 169. 8 Dewees v. Meramec Iron Co., 54 Mo. App. 476; Fugler. Bothe, 117 Mo. 475; Cooley on Torts, pp. 661, 662; Conroy v. Vulcan Iron Co., 6 Mo. App. 102; Harris Dam. by Cor., 511, 977, et sub. 4 Watson v. Karsas and Texas Coal Co, 52 Mo. App. 366; Hughes v. Fagin, 46 Mo. App. 37. But as to latent defects see Hamilton v. Rich Hill Min. Co., 108 Mo. 364. 5 Conroy v. Vulcan Iron Works, 6 Mo. App. 102; Cooley on Torts, pp. 661, 662. If the defect is one that a prudent servant would continue to work, after promise, the employer is liable. Hough v. Ry. Co., 100 § 387. Contract of hiring. If one employs another to work for him for a definite period the employer must furnish the employee work for the entire period and if the employer fails to provide work for the employee, he cannot deduct from the wages of the employee for the time that he was not at work. Where the employer only undertakes, however, to pay a stipulated sum, in proportion to the work done by the employee, this creates no implied obligation to pay the employee for the time that he is idle, or to furnish him with work. But although the employee cannot compel the employer to furnish him with work, or pay him for the time that he was idle, where he was only to be paid in proportion to the work that he performed, still the courts would be disposed to imply an agreement on the part of the employer to furnish the employee with work whenever that would be essential to enable the employee to earn his wages; 3 and while a U. S. 213; Nelson v. Minona &c. Co., 33 N. W. Rep. 908. But an employer is not liable for possible dangers, after knowledge by the employee. Harris Dam. by Cor., § 511, p. 608; Drew v. Gaylord Coal Co. (Pa.), 3 Cent. Rep. 389. 1 Pennsylvania Co. v. Dolan (Ind. App.), 32 N. E. Rep. 802; Fisher v. Manual, 48 N. Y. S. R. 510; 51 N. Y. S. R. 494. But as to the reciprocal duty on the part of the employee, see Stix v. Raulston, 88 Ga. 743. 2 Such would be a contract of employment by the month, even though the services lasted for over a year. Capron v. Strout, 11 Nev. 304. And in such case the employer need not specify the reasons for discharge of the employee. Ball v. Livonig Salt & Min. Co., 59 N. Y. S. R, 236; Whittle v. Frankland, 2 B. & S. 49; Mor. Min. Rep.; Fulger v. Koch &c. Co., 13 Mo. App. 310. 3 And this is particularly true when the employment is for a definite period. Lewis v. Atlas & Co., 61 Mo. 534; Beggs v. Fowler, 82 Mo. 599. But the employee must show his readiness to perform the service. Cramer v. Mack, 8 Mo. App. 531. Nor can he quit until the expiration of the whole period and then recover for same. Stone v. Vimont, 7 Mo. App. 277. The following cases recognize the employee's right to recover for a wrongful di-charge: Allen v. Colliery Co., 196 Pa. St. 512; Lindell v. Chidestell, 84 Ala. 510; Glasgow v. Hood (Tenn. 1900), mine owner can refuse to pay an employee for the time that be was idle, when by the contract of hiring he was only to be paid in proportion to the work performed by him,1 if the employee is engaged for a definite period, although the employer can close down his business whenever he desires, he cannot deduct from the employee's wages for the time that he was idle, even though it would have been impracticable for the mine owner to continue with the work.2 Where the contract is for a certain time. irrespective of any conditions as to work, if the employer should refuse to pay the employee, according to the contract, or for the work he had performed, the employee has either one of two remedies by which to recover the same, i. e., he can bring an action on the contract and sue in damages for the breach; or treat the contract as rescinded and sue upon a quantum meruit for the value of the work and labor done.3 § 388. Wages - How paid-It is generally supposed that a laborer not only has a prior lien for the services performed by him— which in the absence of a statutory provision is a very erroneous opinion - but that on account 57 S. W. Rep. 162; Saxonia Min. Co. v. Cook, 7 Colo. 569; Beck v. Thompson Co., 108 Ga., 242; Hansard v. Menderson Co.,73 Mo. App. 584; Lichenstein v. Brooks, 75 Tex. 196; 20 Am. & Eng. Enc. Law (2 Ed.) 26. Unprovoked insolence to the employer by the employee will justify his discharge. Darst v. Alkali Works, 81 Fed. Rep. 284; Jordan v. Webber Co., 72 Mo. App. 325; Beach v. Mullin, 34 N. J. L. 343. But see Suttie v. Aloe, 39 Mo. App. 38; Wilke v. Harrison, 166 Pa. St. 202; 20 Am. & Eng. Enc. Law (2 Ed.), 28. 1 Capron v, Strout, 11 Nev. 304; Whittle v. Frankland, 2 B. & S. 49, cited supra. 2 Isaacs v. McAndrew, 1 Mont. 437. But if no time for payment was named, an action would not lie until expiration of the period. Idem. Isaacs v. McAndrew, 9 M. M. R. 690. 3 Halsey v. Meinroth, 54 Mo. App. 335; Ehrlich v. Aetna &c. Co., 88 Mo. 249; Kirk v. Hartman, 11 Mor. Min. Rep. 450. of the peculiar character of the debt it is the next thing to an impossibility for an employer to avoid the obligation to pay the employee for his services. This opinion is perhaps correct where there is an obligation to pay on the part of the employer,1 but the truth of the matter is that services, like everything else of value, can be the subject of donation, and unless there is some evidence of an express or implied contract on the part of the employer, to pay the employee for the work performed, the employee cannot recover from the employer for the rendition of such services.3 And while the employee can recover for his services, when there is a contract on the part of the employer to pay him for the same, or recover the value of his services on a 1 See authorities cited under the previous section entitled "Contract of Hiring." 2 "The law does not compel a party to be benefited against his will." Price v. St. L. &c. Co., 3 Mo. App. 262; Colemen v. Roberts, 1 Mo. 97. An employee who quits the service before the expiration of the period he contracted to remain, forfeits his right to all wages due. Blanton v. King, 73 Mo. App. 148; Paul v. Min. Co., 89 Mo. App. 647; Naylor v. Falls River Iron Co., 118 Mass. 317; Tennessee Co. v. James, 91 Tenn. 154; Allen v. Aylesworth, 58 N. J. Eq. 349. But only slight evidence of waiver is necessary. Hogan v. Titlow, 14 Cal. 255. Where the employee's wages are dependent on the profits of the business, he is restricted to profits earned during the period of service. Pen.ston v. Huber Co., 196 Pa. St. 580; McDonald v. Buckstaff, 56 Neb. 88. See also Marks v. Davis, 72 Mo. App. 557; Lowery v. Prospecting Co., 65 Mo. App. 266. “A party who is employed under a written contract as a superintendent of mines for five years at a salary of $4,000 per year, but in which no time for its payment is fixed, must perform services for the period of five years, before he can bring an action for any part of his salary." Isaacs v. McAndrew, 1 Mont. 437. 3 The law will not imply a promise to pay for services where there is no request or acceptance of the benefit of such service. Mansur v. Murphy, 49 Mo. App. 266; Heimenz v. Goerger, 51 Mo. App. 586; Lynch v. Bogy, 19 Mo. 170. And the mere fact that the service was known and was beneficial will ret create a liability therefor. Heimenz v. Goerger, supra. Moss v. Dec. Land Imp. Co. (Ala.), 9 So. Rep. 188. And continu |