Bennett v. Buckner, 12512

• Decision Date: 28 June 1966
• Docket Number: No. 12512,12512
• Citation: 150 W.Va. 648,149 S.E.2d 201
• Court: West Virginia Supreme Court
• Parties: Elbert L. BENNETT v. Otto BUCKNER.

Page 201

149 S.E.2d 201

150 W.Va. 648

Elbert L. BENNETT v. Otto BUCKNER.

No. 12512.

Supreme Court of Appeals of West Virginia.

Submitted May 3, 1966.

Decided June 28, 1966.

Syllabus by the Court

1. Where an employee is accidentally injured upon premises owned or controlled by the employer at a point reasonably proximate to the place of work, while the employee is going to or from his work on a permissible route in general use by the employees, such injury will be deemed to have arisen from and in the course of the employment, within the meaning of the workmen's compensation laws.

2. By reason of the provisions of Sections 6 and 6a, Article 2, Chapter 23 of Code, 1931, as amended, an employee of a subscriber to the workmen's compensation fund who negligently injures a fellow employee during the course of their employment is not liable to respond in damages to the injured fellow employee for the personal injuries thus caused to him.

R. G. Lilly, Charleston, Robert J. Ashworth, Beckley, for appellant.

Jackson, Kelly, Holt & O'Farrell, John L. McClaugherty, W. T. Shaffer, Charleston, for appellee.

CALHOUN, Judge:

This case, on appeal from a final judgment of the Circuit Court of Kanawha County, involves a civil action instituted by Elbert L. Bennett, as plaintiff, against Otto Buckner, as defendant, to recover damages for personal injuries sustained by the plaintiff while on the premises of his employer, Union Carbide Corporation, a subscriber to the workmen's compensation fund.

The primary question presented for decision on this appeal is whether the defendant, as a fellow employee of the plaintiff, is or is not entitled to immunity from liability in the action by reason of the provisions of Code, 1931, 23--2--6, and 23--2--6a, as amended, which, for convenience, will be referred to in this opinion merely as Section 6 and Section 6a, respectively.

Section 6, to the extent that it is material in this case, is as follows: 'Any employer subject to this chapter who shall elect to pay into the workmen's compensation fund the premiums provided by this chapter shall not be liable to respond in damages at common law or by statute for the injury or death of any employee however occurring after such election and during any period in which such employer shall not be in default in the payment of such premiums and shall have complied fully with all other provisions of this chapter; * * *.'

Article 2, Chapter 23, Code, 1931, was amended by Chapter 136, Acts of the Legislature, Regular Session, 1949, by the enactment of a new provision designated as Section 6a, which is as follows: 'The immunity from liability set out in the preceding section shall extend to every officer, manager, agent, representative or employee of such employer when he is acting in furtherance of the employer's business and does not inflict an injury with deliberate intention.'

Upon a stipulation of all material facts, the circuit court granted the defendant's motion for summary judgment. From that judgment, the plaintiff has been granted the appeal to this Court.

Both the plaintiff and the defendant were employed by Union Carbide Corporation at its Bell Creek No. 3 mine in Kanawha County. On July 14, 1963, while the plaintiff and the defendant were going to work at their employer's coal mine, the plaintiff was riding in the bed of the defendant's pickup truck while it was being operated by the defendant over a private road leading to the mine. As the pickup truck was being driven by the defendant on the employer's property in the area of a curve on the narrow, precipitous, unpaved private road leading to the mouth of the mine and the tipple, the plaintiff became fearful that the defendant was losing control of the pickup truck, jumped from it and, as a consequence sustained the personal injuries for which recovery of damages is sought in the civil action involved in this case.

The private road in question leads from a state secondary highway over the employer's property to the mine. When the employer first opened the mine, it constructed a parking lot near the employer's mine office and machine shop for the parking of motor vehicles used by the employees in going to and returning from work in the mine. Initially, no motor vehicles, except those belonging to supervisory personnel, were permitted beyond the parking lot. From that point, employees walked to the mine over a footpath maintained for that purpose by the employer. Subsequently, and before the date the plaintiff was injured, the employer's policy concerning parking of motor vehicles was relaxed so as to permit pickup trucks to be driven beyond the parking lot to the vicinity of the mine entrance. Thereafter workmen who came to work in automobiles parked them on the parking lot and, from that point, either walked or rode in pickup trucks.

The stipulation of facts contains the following language: 'On July 14, 1963 the plaintiff, together with Darrell Beard, Arnold Bartley and Jack Boley, fellow employees, in accordance with their custom and practice and with knowledge and consent of said Union Carbide Corporation, parked their automobiles on said parking lot adjacent to said mine office and machine shop and caught a ride with the defendant, intending to go to the drift mouth, tipple and lamp house area. The defendant drove a one-half ton pickup truck to work and was one of the employees who was permitted to drive his vehicle on said private road past said mine office and machine shop. On numerous occasions the defendant had transported other employees from the mine office and machine shop to the drift mouth, including the plaintiff.' These employees were to begin their work shift at twelve o'clock midnight and were reporting to work at the lamp house which is located adjacent to the entrance to the mine. The accident occurred at approximately 11:45 p.m. at a point approximately twelve hundred feet by the private road and approximately four hundred feet by direct course from the entrance to the mine.

On July 15, 1963, the plaintiff, while in a hospital receiving treatment for his injuries, filled out the necessary forms to make application for workmen's compensation benefits based on the injuries which he sustained in the manner previously described. The employer took the position that the claim was not compensable because the plaintiff was not under the supervision of a foreman at the time he sustained his injuries and because the accident occurred before the actual commencement of his work shift. The workmen's compensation commissioner, by an order entered on August 16, 1963, held that the claim was compensable. The employer did not object to the entry of the order within the prescribed thirty-day statutory period and consequently the order became final. The plaintiff began receiving benefits retroactive to the date of the accident. At the time the stipulation of facts was made, he was continuing to receive payment of his medical and hospital bills from the workmen's compensation fund.

Section 6a, which extended immunity to persons in addition to employers, has been considered by this Court in two previous cases but they are of limited aid in our decision of the present case. In Crawford v. Parsons, 141 W.Va. 752, 92 S.E.2d 913, the primary question decided was that the statute is not unconstitutional. Canterbury v. Valley Bell Dairy Company et al., 142 W.Va. 154, 95 S.E.2d 73, involved an action by an employee, as plaintiff, against a fellow employee and the employer, as defendants, to recover damages for personal injuries sustained by the plaintiff as a result of the alleged negligence of the employee defendant. The Court held that both defendants were entitled to...