Basham v. County Court Of Kanawha County

• Decision Date: 28 November 1933
• Docket Number: (No. 7823)
• Citation: 114 W.Va. 376
• Court: West Virginia Supreme Court
• Parties: Lulu Basham v. County Court of Kanawha County

114 W.Va. 376

Lulu Basham

v.County Court of Kanawha County

(No. 7823)

Supreme Court of Appeals of West Virginia.

Submitted November 8, 1933.

Decided November 28, 1933.

Master and Servant

A contract of employment for remuneration is necessary to constitute the relation of employer and employee under the Compensation Act.

Mandamus proceeding by Lulu Basham against the County Court of Kanawha County.

Writ denied.

J. E. Springston, for relator.

Homer A. Holt, Attorney General, R. Dennis Steed and Kenneth E. Hines, Assistant Attorneys General, and Dale G. Casto, for respondent.

Litz, Judge:

Lulu Basham, dependent widow of Charles Basham, deceased, seeks a writ of mandamus compelling the county court of Kanawha County to report an accident, causing his death, to the state compensation commissioner and requiring the commissioner to furnish her prescribed forms for the filing of a claim (under the Workmen's Compensation Act), for compensation to herself, and her four infant children, under sixteen years of age.

Charles Basham, in some manner not disclosed in the record, sustained a fatal injury January 10, 1933, while working on a county road in Kanawha County. He was employed (with others) by the county welfare board (an agency of the state unemployment relief administration), in the expenditure or distribution of relief funds furnished by the Reconstruction Finance Corporation of the Federal Government. The only connection of the county court with this scheme for the relief of unemployed was to assign and supervise the work. It did not employ, discharge, or pay the workers.

The question, therefore, for solution is whether the deceased was, at the time of this injury, an employee of the county court in contemplation of the compensation act, pertinent provisions of which follow: "All persons, firms, associations and corporations regularly employing other persons for the purpose of carrying on any form of industry or business in this State, county courts and municipal corporations, the State of West Virginia, and all governmental agencies or departments created by it, are employers within the meaning of this chapter and subject to its provisions. All persons in the service of employers as herein defined and employed by them for the purpose of carrying on the industry, business or work in which they are engaged, and checkweighmen employed according to law, are employees within the meaning of this chapter and subject to its provisions * * *." Chapter 23, article 2, section 1, Code 1931.

"For the purpose of creating a workmen's compensation fund each employer subject to this chapter shall pay the premiums of liability based upon and being such a percentage of the payroll of such employer as may have been determined by the commissioner and be then in effect. The premiums shall be paid monthly, on or before the twenty-fifth of each month, for the preceding month, and shall be the prescribed percentage of the total earnings of all employees within the meaning of this chapter, whose work is within this State, for such preceding month." Section 5 of the same chapter and article.

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