Barta v. State Comp. Comm'r Et At., (No. 9794)

• Court: Supreme Court of West Virginia
• Writing for the Court: FOX.
• Citation: 128 W.Va. 448
• Parties: Essie Barta, Widow, etc. v. State Compensation Commissioner et at.
• Decision Date: 19 February 1946
• Docket Number: (No. 9794)

128 W.Va. 448

Essie Barta, Widow, etc.
v.
State Compensation Commissioner et at.

(No. 9794)

Supreme Court of Appeals of West Virginia.

Submitted January 29, 1946.
Decided February 19, 1946.

[128 W.Va. 448]

1. Master and Servant

An employee in a coal mine is charged with actual notice of a particular provision or section of the statutes of this State, relating to mines and mining, when a copy of such statutes is delivered to him in person by the employer.

2. Workmen's Compensation

The burden of proof to show facts which would bar compensation to an injured employee, under Code, 23-4-2, as amended by Chapter 104, Acts of the Legislature, 1937, rests upon the employer.

Appeal from Workmen's Compensation Appeal Board.

Proceedings under the Workmen's Compensation Act on the claim of Essie Barta, widow of Louis Barta, deceased employee, for compensation to claimant and her infant daughter for the death of deceased employee in the course of and as the result of his employment with Raleigh-Wyoming Mining Company. From an order of the Workmen's Compensation Appeal Board reversing an order of the compensation commissioner which allowed compensation to claimant and daughter, claimant appeals.

Reversed and remanded.

Hillis Townsend, for appellant. Bailey & Shannon, for appellees.

Fox, Judge:

Essie Barta, widow of Louis Barta, complains of an order entered by the Workmen's Compensation Appeal

[128 W.Va. 449]

Board, on October 6, 1945, reversing an order of the compensation commissioner which allowed compensation to her and her infant daughter, and denying her compensation to which she claims to be entitled by reason of the death of her husband, Louis Barta, on October 28, 1944, in the course of and as the result of his employment while working as a miner for Raleigh-Wyoming Mining Company.

Barta was killed by being crushed by a loaded mine car within his employer's mine, but whether he met his death by falling from the mine car, or was run over by said car while he was on the mine track is not clear; and, in our view, that is the decisive question in this case. One contention of the employer is that, as a result of a breakaway and collision between loaded mine cars, within the mine, Barta was thrown from one of them and crushed to death; and that his being on the mine car was the result of his wilful disobedience of the rules of the coal company, duly promulgated and posted, under Code, 23-4-2, as amended, and constituted wilful misconduct within the meaning of Code, 22-2-62.

Assuming for the moment, that Barta, in disregard of the rules promulgated and posted by the employer, and in violation of Code, 22-2-62, boarded the mine car and was thrown therefrom, two questions are presented: (1) Whether the rules upon which the employer relies were properly promulgated; and (2) whether Barta had actual notice of the provisions of Code, 22-2-62, which prohibited his riding on a mine car, unless he was one of the persons necessary to operate the trip or car. Code, 23-4-2, as amended by Chapter 104, Acts of the Legislature, 1937, provides that: "Notwithstanding anything hereinbefore or hereinafter contained, no employee or dependent of any employee shall be entitled to receive any sum from the workmen's compensation fund * * * on account of any personal injury to or death of any employee caused by a self-inflicted injury, wilful misconduct, wilful disobedience to such rules and regulations as may be adopted by the employer and approved by the

[128 W.Va. 450]

commissioner, and which rules and regulations have been and are kept posted in conspicuous places in and about the work * * *."

In Bradley v. Compensation Commissioner, 110 W. Va. 89, 157 S. E. 42, we held that to defeat the right of an employee or his dependents to compensation, on the ground that the injury had resulted from his wilful misconduct, the acts constituting the charge must be established by satisfactory evidence in view of all the facts and circumstances of the case. This we understand to mean that the burden always rests upon the employer to establish the fault of the employee, and that the conduct of the latter comes within the terms of the statute quoted above. The employer filed two sets of rules printed on large cardboards, one of which is headed: "COAL, COMP ANY RULES," and purports to be "In compliance with Rule No. 1, promulgated by C. L. Heaberlin, State Compensation Commissioner, under the provisions of Section 28 of the Workmen's Compensation Law, effective February 15, 1929", and states that "the undersigned Company has formulated and put into effect the following safety rules and regulations to prevent injury to employees.", and, following the rules is the printed name "Raleigh Wyoming Mining Company." The other is headed "RULES ADOPTED BY THE RALEIGH-WYOMING MINING COMPANY", covering certain mines mentioned, which, we understand, include the mine here involved, and it purports to be made in compliance with the requirements of the Acts of the Legislature of 1931. This rule, while it purports to have emanated from the mining company, is not signed by it, and as to neither of the two sets of rules relied upon is there any indication that they have been submitted to or approved by the state compensation commissioner. While they each contain rules prohibiting the riding of mine cars, and appear to have been properly posted about the mine, they do not show on the face thereof, nor is it otherwise shown, that they had been approved by the compensation commissioner. For this reason,

[128 W.Va. 451]

we are of opinion that they do not meet the requirements necessary to bar compensation to petitioner in this case.

In Billings v. State Compensation Commissioner, 123 W. Va. 498, 16 S. E. 2d 804, we held that proof of actual knowledge by an employee of a safety rule made effective in accordance with Code, 23-4-2, is unnecessary to make its...