Allen v. Raleigh-Wyoming Mining Co.

• Citation: 186 S.E. 612,117 W.Va. 631
• Decision Date: 20 June 1936
• Docket Number: 8356.
• Parties: ALLEN v. RALEIGH-WYOMING MINING CO.
• Court: Supreme Court of West Virginia

186 S.E. 612

117 W.Va. 631

ALLEN v. RALEIGH-WYOMING MINING CO.

No. 8356.

Supreme Court of Appeals of West Virginia.

June 20, 1936

Submitted May 13, 1936.

Syllabus by the Court.

Section 2, article 4, chapter 23, Code 1931, authorizes an action for damages by an employee against his employer, notwithstanding the compensation act, for injury caused by the deliberate intention of the employer to produce the same. Held, that a specific intent on the part of the employer to produce the injury must be shown to support a recovery in such case.

Error to Circuit Court, Raleigh County.

Action by Anthony Ross Allen against the Raleigh-Wyoming Mining Company. To review a judgment for plaintiff, defendant brings error.

Reversed and new trial awarded.

McGinnis Ashworth & Mann, of Beckley, for plaintiff in error.

Clay S Crouse and John Q. Hutchinson, both of Beckley, for defendant in error.

LITZ Judge.

This is an action under section 2, article 4, chapter 23, Code 1931 providing that an employee sustaining injury "from the deliberate intention of his employer to produce such injury" shall be entitled to compensation under the statute and damages from the employer to the extent of his injury in excess of the amount received or receivable under the Compensation Act.

Plaintiff Anthony Ross Allen, was injured in the course and as the result of his employment, as servant of defendant, Raleigh-Wyoming Mining Company, on the night of June 7, 1934, while riding the front end of a trip of empty mine cars in the coal mine of defendant, in Raleigh county, by coming in contact with a wooden trapdoor hung across the track. He had been working in the mine about two months. Previous to the day of the injury, a canvas, suspended at the point of the accident, served as a brattice. On that day the canvas was removed and the trapdoor installed. The cars were being pushed in the mine by an electric motor on which the section foreman, Garland Whitt, was riding. Whitt knew of the installation of the trapdoor, and testified that he had advised plaintiff of the fact before the accident. He also testified that, as the trip of cars approached the door, he directed the motorman to slow down, and that the motor and cars were moving very slowly at the time of the collision. But he does not say whether he had, before the accident, informed the motorman of the door or directed him to stop the trip before reaching the point of its location. Plaintiff denied that he knew of the door or that Whitt had given him any warning. Judgment was entered on a verdict of $1,600 against defendant in favor of plaintiff, and defendant prosecutes error.

The question for decision is whether the evidence is sufficient to prove that the plaintiff's injury was the result of "the deliberate intention" of defendant "to produce such injury," within the meaning of the statute. Our original compensation statute, enacted in 1913, substantially followed, in many respects, the provisions of the first compensation act of the state of Washington, passed in 1911, and the provision now in question was adopted almost in the exact language of the Washington act; the only difference being the use of the word "employee" in our statute for "workman" in the Washington act. In 1913 the state of Oregon also adopted as a part of its first compensation act the provision in question, and the Supreme Court of that state judicially determined its meaning in Jenkins v. Carman Mfg. Co. (1916) 79 Or. 448, 155 P. 703, 705, 11 N.C.C.A. 547. A demurrer was sustained to the complaint in the case which had been brought by an employee to recover damages from his employer for injuries sustained by him from the operation of a defective roller in a sawmill, at which he was employed, upon the allegation that the employer, knowing of the defective machinery, carelessly, recklessly, and negligently failed to repair the same and required workmen to labor in its vicinity, deliberately intending to injure them. In its opinion the court said: "The deliberate intent [mentioned in the complaint] follows as a deduction from the allegation of knowledge of the danger and the carelessness, negligence, and recklessness of defendant in not obviating it. In our opinion the allegation goes no further than to charge that defendant with full knowledge of the defect carelessly, negligently, and recklessly took the risk of its injuring the plaintiff. * * * A deliberate act is one the consequences of which are weighed in the mind beforehand. It is prolonged premeditation, and the word when used in connection with an injury to another denotes design and malignity of heart. * * * We think by the words 'deliberate intention to produce the injury' that the lawmakers meant to imply that the employer must have determined to injure an employe and used some means appropriate to that end; that there must be a specific intent, and not merely carelessness or negligence, however gross."

In 1922 the Supreme Court of Washington adopted the definition of "deliberate intent" laid down in the Jenkins Case and ruled that an employee injured in the course of his employment by the explosion of a boiler, maintained by his employer, could not recover damages under the statute in the absence of evidence tending to show a specific deliberate intent on the part of the latter to produce the injury. Delthony v. Standard Furniture Co., 119 Wash. 298, 205 P. 379, 21 N.C.C.A. 856. The opinion states: "There is no evidence in the record showing, or tending to show, any such deliberate intention. It may be admitted that, if the question were one as to whether the respondent was negligent in the manner in which it maintained the boiler, the case would present a question for the jury. The appellant contends that, if the...