Archibald v. Ott

• Decision Date: 18 January 1916
• Docket Number: (No. 2987.)
• Citation: 77 W.Va. 448,87 S.E. 791
• Court: West Virginia Supreme Court
• Parties: ARCHIBALD. v. OTT, State Compensation Com'r.

87 S.E. 791

77 W.Va. 448

ARCHIBALD.

v.OTT, State Compensation Com'r.

(No. 2987.)

Supreme Court of Appeals of West Virginia.

Jan. 18, 1916.

(Syllabus by the Court.)

Appeal from State Compensation Commissioner.

Proceedings under the Workmen's Compensation Act by Clara A. Archibald to obtain compensation for death of her husband from accident in the course of his employment with the Schofield-Cowl Company. Compensation was denied by Lee Ott, the State Compensation Commissioner, and the applicant appeals. Compensation awarded.

Blackford, Bradshaw & Beans, of Wheeling, and Conley & Johnson, of Charleston, for appellant.

Frank Lively, Asst. Atty. Gen., for appellee.

POFFENBARGER, J. George Archibald, a husband and the father of three children, while working as a plumber for the Schofield-Cowl Company, at Wheeling, W. Va., died in consequence of accidental poisoning. That the accident occurred in the course of his employment seems not to be controverted, but that the injury arose out of the employment, or resulted from it, in the legal sense of the terms, is denied; and compensation to the widow was refused, upon the theory that it did not

The poisoning was not an occupational disease, such as lead poison. Archibald drank a poisonous fluid commercially known as lapidolith, and used for hardening concrete, believing it to be drinking water. His employers were installing the plumbing in the Wheeling High School building. The Fetzer-Winger Company were doing the concrete work in the same building. All of the employes supplied themselves with drinking water from a neighboring well by means of buckets and bottles; the city water piped into the building being unsatisfactory or less desirable than the well water. Bottles of different sizes and kinds were used. Having occasion to be on the third floor of the building in the course of his work, and becoming thirsty, Archibald discovered what he took to be a large bottle of water in a bucket and drank from it, thinking it had been brought up and left there by some other workman. It proved to be the lapidolith with which a servant of the Fetzer-Winger Com-

[77 W.Va. 792]

pany had been treating the concrete floors. Having made one or more applications of it, this servant had set the bottle in a bucket he had used in applying the fluid, and left it there until he should need it for another application. On the bucket he set a broom and placed a card bearing the word "Poison." At Archibald's shop or workbench in another part of the building he had a water bottle of his own. Why he did not notice the warning on the card is not definitely shown. The fluid was clear, and looked like water, and knowledge of the common use of such bottles by the workmen, no doubt, induced the hasty and thoughtless act.

Right of compensation under the statute does not depend upon negligence or fault of the employer and is not precluded by mere negligence on the part of the employe causing the injury. It gives compensation for injuries received "in the course of and resulting from" the employment. It specifically denies compensation for injuries self-inflicted or occasioned by the willful misconduct of the employe, his disobedience of rules and regulations adopted by the employer and approved by the Compensation Commissioner, or bis intoxication. Its provisions are based upon the principles of the English Compensation Act, which has been construed as giving compensation for accidental injuries, though occasioned by negligence of the injured party. In his disposition of the application, the Commissioner does not depart from this construction, nor does he deny right of participation, on the ground of Archibald's negligence or carelessness. The specification of certain grounds of exclusion impliedly limits and confines it to them, and relieves from other circumstances which might be deemed sufficient to exclude, in the absence of an expression of contrary legislative intent Exclusion on certain grounds argues intent not to exclude on others. "Expressio unius est exclusio alterius."

As Archibald's negligence or carelessness is immaterial, and the injury was incurred manifestly in the course of his employment, it remains only to determine whether it resulted from the employment. To give right of compensation, an injury must result from, or arise out of, the employment. The two phrases "in the course of employment" and "resulting from employment" are not synonymous. The former relates to the time, place, and circumstances of the injury, and the latter to its origin. Fitzgerald v. Clark, 1 B. W. C. C. 197; McNicol's Case, 215 Mass. 497, 102 N. E. 697. It is not enough to say the accident would not have happened if the servant had not been engaged in the work at the time, or had not been in that place. It must appear that it resulted from something he was doing in the course of his work or from some peculiar danger to which the work exposed him. Amys v. Barton, 5 B. W. C. C. 117.

Instances of injuries deemed not to have arisen out of the employment, although sustained in the course thereof, are found in the reported cases. An injury intentionally inflicted upon one workman by another, by a blow from a piece of iron thrown in anger, or by an assault and battery, is of that kind. Such also is the character of an injury resulting from an...