Maynard v. Island Creek Coal Co.
| Decision Date | 12 June 1934 |
| Docket Number | C. C. 503. |
| Citation | 175 S.E. 70,115 W.Va. 249 |
| Parties | MAYNARD v. ISLAND CREEK COAL CO. |
| Court | West Virginia Supreme Court |
Submitted May 10, 1934.
Syllabus by the Court.
1. The West Virginia Workmen's Compensation Law provides (Code 23-4-2) that an employer, subscriber to the compensation fund, shall not be relieved by the compensation act from liability for damages on account of injury or death of any employee caused by the "deliberate intention" of the employer to produce injury or death of the employee. Allegations in a declaration of acts of gross negligence by the employer do not constitute deliberate intention within the meaning of the said statutory provision. To bring a case within said provision, at the very least, there must be alleged facts from which the natural and probable consequence reasonably to be anticipated would be death or serious injury to the employee affected thereby.
2. Though a declaration by an employee against an employer subscriber to the workmen's compensation fund, may not be sufficient on the theory that the employer through deliberate intention occasioned injury to the employee, the declaration may be sufficient on the theory of negligence, where there is effectual allegation that the employer had failed of compliance with requirements of the compensation law.
3. In an action for damages by an employee against an employer, subscriber to the workmen's compensation fund, an allegation that the employer had failed to post notices, required by the compensation act for the purpose of disclosing that he was such subscriber, constitutes a prima facie showing of the employer's non-compliance with the requirements of the act. In such situation, it is not necessary for the declaration to carry a further allegation that the injured employee did not have actual notice that his employer was a subscriber to said fund. The fact of such actual notice, if it existed, is a matter for affirmance by the defense.
Case Certified from Circuit Court, Logan County.
Action by Hester Maynard, administratrix of the estate of Fletcher Pack, deceased, against the Island Creek Coal Company. A demurrer to the declaration was sustained and the ruling certified for review.
Judgment reversed and cause remanded, with directions.
Lilly & Lilly, of Charleston, and F. F. Scaggs, of Wayne, for plaintiff.
Robert Bland and Chas. L. Estep, both of Logan, for defendant.
This certification presents the question of the sufficiency of a declaration to which the trial court sustained a demurrer.
It is alleged in the declaration that on the 11th of March, 1932 plaintiff's decedent, Fletcher Pack, was killed in the course of his duties as an employee of the defendant in the operation of a coal mining plant; that the defendant was then a subscriber to the workmen's compensation fund but had not posted notices of that fact as required by law (Code 23-2-7); that part of defendant's equipment, to-wit, a certain coal conveyor consisting of a continuous chain of buckets, had become out of repair; that it was repaired by an employee of defendant by the insertion of a bolt which extended above the surface or covering of the conveyor at a place where the covering of said conveyor was broken, and the continuously moving buckets exposed; that plaintiff's decedent stumbled over the protruding bolt and fell into the conveyor and was killed; that the conveyor covering had frequently been out of repair; "that the danger of the said conveyor or tramway again breaking and becoming open, or the danger of it momentarily coming open in the course of its operation, thereby exposing the buckets or carriers was so apparent that the said defendant, at all times, had notice and was charged with notice that the place where the plaintiff's decedent was required to work was nothing more or less than a death trap"; that the defendant through its willful, deliberate, and unlawful negligence in permitting the conveyor to become open and the bolt improperly to protrude thereby disregarded its duties to the plaintiff's decedent "with deliberate intent to injure or kill him."
The declaration is framed primarily with the idea of bringing the case within the exception of Code, 23-4-2, which provides that an employer, subscriber to the workmen's compensation fund, shall not be relieved by the compensation act from liability for damages on account of injury to or death of any employee caused by the "deliberate intention" of the employer to produce injury or death of the employee.
In support of plaintiff's position, strong reliance is placed on the case of Collins v. Dravo Contracting Co. (W. Va.) 171 S.E. 757. That case involved a situation where an employee working in a deep excavation was killed by a fall of earth. It was alleged that the bank was overhanging; that there had been previous breaks, known to the employer; that the probability of further breaks was known to the employer; that it anticipated such further...
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