Adams v. Ky.

• Decision Date: 08 June 1926
• Docket Number: (No. 5590)
• Court: West Virginia Supreme Court
• Parties: Aris Adams v. Kentucky & "West Virginia Power Company

102 W.Va. 66

Aris Adams

v.Kentucky & "West Virginia Power Company

(No. 5590)

Supreme Court of Appeals of West Virginia.

Submitted May 19, 1926.

Decided June 8, 1926.

November 12, 1926.

(Rehearing Denied November 12, 1926.)

1. Master and Servant Employer Failing to File Acceptances

or Joint Election is not protected by Workmen's Compensation Act Against Damages for Injury to Employee Working in Interstate Service (Workmen's Compensation Law [Code 1923, c. 15P~\ §52).

An employer engaged in intrastate and interstate commerce and failing to file written acceptances or joint election, as provided by Section 52 of the Workmen's Compensation Law (Chapter 15-P Code 1923), is not protected by the Act against damages for injury to one of its employees while working in the interstate service, (p. 68.)

(Workmen's Compensation Acts, C. J. § 44.)

2. Same Employee, Injured in Interstate Service, Held Not

Estopped by Accepting Benefits From Workmen's Com- pensation Law From Instituting Common-Law Action Against Employer (Workmen's Compensation Law, § 52 [Code 1923, c. 15P] § 52).

The employee in such case not being entitled to compensation under the Workmen's Compensation Law is not estopped by applying for and accepting current benefits thereunder from afterwards instituting an action at common law against his employer for damages, (p. 72.)

(Workmen's Compensation Acts, C. J. § 156.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Lively, Woods, Judges, absent.

Error to Circuit Court, Mingo County.

Action by Aris Adams' against the Kentucky & West Virginia Power Company. Judgment for plaintiff, and defendant brings error.

Affirmed.

M. F. Millikan, Chlide Nelms and Goodykoontz & Slaven, for plaintiff in error.

Litz, President:

Defendant prosecutes error to judgment of the circuit court upon a verdict in favor of plaintiff for $20,000.00, the action being in trespass on the case for personal injury.

The defendant produces by steam power, in Logan and Mingo counties, West Virginia, large quantities of electricity which it distributes' for sale over a system of high voltage wires through counties of this State and into Pike county, Kentucky. June 10, 1923, the plaintiff sustained serious personal injury in the employ of defendant as lineman and electrician on its interstate electrical system from contact with a high tension line while painting the substation at Fall Branch, Mingo county, West Virginia.

The alleged negligence of the defendant in failing to furnish plaintiff a reasonably safe place to work is the basis of the action. The declaration further charges that the defendant being engaged in interstate commerce and not having complied with Section 52 of the Workmen's Compensa- tion Statute, is not within the protection of the Act. The defendant maintains: (1) that it was not guilty of negligence; (2) that the plaintiff was guilty of contributory negligence; (3) that the work in which plaintiff was engaged at the time of his injury did not relate to interstate commerce; and (4) that the plaintiff, by applying for and accepting benefits under the Compensation Act, is estopped to deny the defendant its protection.

As the evidence respecting the first two issues is in substantial conflict, the finding of the jury thereon should not be disturbed. Counsel for the defendant concede that the "paramount question" presented by the record "is whether the defendant was protected by the Workmen's Compensation Act".

The principal question of fact involves the ownership of the distributing line from the Fall Branch sub-station near the State line, across Tug River into Pike county, Kentucky, to serve the Fall Branch Coal Company. The evidence tends to show that this' line was constructed by the defendant or its predecessor, Tug River Electric Company, in 1919. The testimony is conflicting as to whether it has been maintained by the defendant or the coal company. The contractual relation, if any, existing between them relative to the use or maintenance of the line is not shown. In view of these circumstances the jury was justified in finding that this line, as well as the sub-station on which the plaintiff was working at the time of the injury, was part of defendant's interstate system which included at least one other distributing line extending from Mingo county, West Virginia, into Pike county, Kentucky. The defendant in the operation of such system for the transportation of electricity from one State to another was thus engaged in interstate commerce; and the plaintiff at the time of the injury was performing service, pursuant to his employment, in interstate commerce. "The transportation or transmission of electric current from State to State through appropriate instrumentalities is commerce between the States." Mill Creek Coal & Coke Company v. Public Service Commission, 84 W. Va. 662, 100 S. E. 557. "The sale and transportation of electricity generated in one State, and conveyed directly to a purchaser in another State is interstate commerce. It is the essential nature of the service rendered which determines whether commerce is interstate or intrastate; if the actual movement is interstate, it is immaterial that the place of delivery or the place at which title passes is at the State line. The transportation of electricity is continuous from this State to its ultimate destination in another State, and consequently is interstate commerce." Attleboro Steam & Electric Co. v. Public Utilities Commission, (R. I. 1925) 129 Atl. 495.

As a basis of defense under the Compensation Law it was stipulated:

"That the defendant herein, at the time of the accident referred to in the declaration, to-wit, June 10, 1923, had complied with the general terms of what is known as the Workmen's Compensation Act of this State, and was fully protected thereby, in all respects as provided by said act, except, however, that prior to said date the plaintiff and defendant had not filed a written joint election by the plaintiff and defendant with the Workmen's Compensation Commission of this State, as contemplated by Section 52 of Chapter 15-P of the Code of West Virginia, in cases in said Section provided for";

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and shown that plaintiff had applied for and accepted current benefits under the Compensation Act. Section 52 of the statute (Sec. 52, Chapter 131, Acts 1919), provides:

"In case any employer within the meaning of this act is also engaged in interstate or foreign commerce and for whom: a rule of liability or method of compensation has been or may be established by the congress of the United States this act shall apply to him, only to the extent that his mutual connection with work in this State is clearly separable and distinguishable from his interstate work, and in such case such employer and any of his employees thus engaged in both intrastate and interstate work, may, with the approval of the commissioner, elect to pay into the fund the premiums provided by this act on account of work done in this State only, by filing written acceptances, or a joint election with the commissioner, and such election when filed and approved by the eommissioner shall subject the acceptor irrevocably to the provisions of the act to all intents and purposes as if they had been originally included in its terms. Payments of premiums shall be on the basis of the payroll of the employees who accept as aforesaid, for work done in this State only."

The questions involved in this defense are: (1) whether as to its employes engaged in interstate service the defendant was required, under Section 52, to file with the Compensation Commission a special written election as well as to pay into the compensation fund; and (2) whether the plaintiff is estopped to deny the defendant the right of defense under the Compensation Act, notwithstanding its failure to comply with Section 52.

Section 52 of the original statute, enacted 1913, follows:

"The provisions of this act shall apply to employers and employes engaged in intrastate and also in interstate or foreign commerce for whom a rule of liability or method of compensation has been or may be established by the congress of the United States only to the extent that their mutual connection with intrastate work may and shall be clearly separable and distinguishable from interstate or foreign commerce, except that any such employer and any of his employes working only in this State may with the approval of the commission, and so far as not forbidden by any act of congress, voluntarily accept the provisions of this act by filing written acceptances with the commission, and such acceptances, when filed with and approved by the commission, shall subject the acceptors irrevocably to the provisions of the act to all intents and purposes as if they had been originally included in its terms.

Payments of premium shall he on the basis of the payroll of the employes who accept as aforesaid."

In Barnett v. Railway Co., 81 W. Va. 251, and Suttle v. Gas Co., 82 "W. Va. 729, it is held that with respect to an employer engaged in interstate commerce this section applies the provisions of the act unconditionally to those of his employees whose work is wholly intrastate and clearly separable and distinguishable from work in interstate commerce; but with respect to employees who are engaged partly in intrastate and partly in interstate commerce it applies only upon the condition that the employer and employees voluntarily accept the provisions of the act by formal writing approved by the commissioner. Analyzing its structure, in the latter case, Judge Lynch said:

"This section embraces...