Amherst Coal Co. v. Hix, (No. 9656)

• Decision Date: 06 November 1945
• Docket Number: (No. 9656)
• Citation: 128 W.Va. 119
• Court: West Virginia Supreme Court
• Parties: Amherst Coal Company v. M. H. Hix, Clerk of The Circuit Court of KanawhaCounty, Board of Review of The West VirginiaDepartment of Unemployment Compensation et al.

128 W.Va. 119

Amherst Coal Company

v. M. H. Hix, Clerk of The Circuit Court of KanawhaCounty, Board of Review of The West VirginiaDepartment of Unemployment Compensation et al.

(No. 9656)

Supreme Court of Appeals of West Virginia.

Submitted October 3, 1945.

Decided November 6, 1945.

Master and Servant

Customary working conditions not involving deceit or other wrongful conduct on the part of the employer are not a sufficient reason for an employee to leave his most recent work voluntarily under the provisions of Chapter 1, Article 6, Section 4 (1), Acts 2nd Extraordinary Session, 1936, as amended by Chapter 76, Acts 1943.

Certiorari from Circuit Court, Kanawha County.

Certiorari proceeding by the Amherst Coal Company against M. H. Hix, Clerk of the Circuit Court of Kanawha County, to review an order of the Circuit Court which affirmed an order of the Board of Review of the West Virginia Department of Unemployment Compensation awarding unemployment compensation to Frank Marcum.

Reversed and remanded.

Chas. L. Estep, for petitioner. Leo Loeb, for respondent.

Kenna, Judge:

This writ of certiorari addressed to the Clerk of the Circuit Court of Kanawha County was granted because of an order of that court which affirmed an order of March 30, 1944, of the Board of Review of the Department of Unemployment Compensation, the writ having been granted upon the petition of Amherst Coal Company, the order complained of having awarded unemployment compensation to Frank Marcum, an inside maintenance man at the company's No. 1 operation on Buffalo Creek in Logan County. This submission presents no material conflict concerning the facts, but involves the question of whether Marcum quit work on March 31, 1943, under circumstances that would disqualify him under Michie's Code, 1943, 21A-6-4 (1), from receiving benefits under the "Unemployment Compensation Law" due to the fact that he quit work "voluntarily without good cause involving fault on the part of the employer".

The facts shown by the record before us in substance are as follows: The claimant at the age of fifty-five had been employed by Amherst Coal Company for a period of ten years, as far as the record shows in the same capacity and working conditions in its Number 1 operation. During that time he had lived in one of the company houses located near his work. Prior to March 31, 1943, he had bought a farm of fourteen acres in Cabell County near-Huntington, a distance of approximately sixty-five miles from his place of employment. On the last named date, according to the claimant's version, he informed the superintendent that his physical condition would no longer permit him to perform the duties of a maintenance man in a low-seam operation, wmich Amherst Number 1 Mine admittedly is, and that for that reason he desired to be transferred to the same company's Number 2 operation with higher coal and less dampness. According to Marcum, the superintendent unconditionally refused this request. The superintendent denies that Marcum at that time asked to be transferred and states that claimant told him he was quitting in order to move to his Cabell County farm. Marcum did go to the Cabell County farm and on April 13, 1943, filed his claim for unemployment compensation and on April 20 the Director's Deputy approved it. This finding was appealed to one of the Director's Trial Examiners who on June 22...