Bennett v. Buckner, No. 12512

CourtSupreme Court of West Virginia
Writing for the CourtCALHOUN
Citation150 W.Va. 648,149 S.E.2d 201
PartiesElbert L. BENNETT v. Otto BUCKNER.
Decision Date28 June 1966
Docket NumberNo. 12512

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.

[150 W.Va. 649] 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

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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 [150 W.Va. 650] 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...

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17 practice notes
  • Marlin v. Bill Rich Const., Inc., No. 23121
    • United States
    • Supreme Court of West Virginia
    • February 19, 1997
    ...compensable under the workers' compensation law as it existed at the time of the injury. Appellee relies on Bennett v. Buckner, 150 W.Va. 648, 149 S.E.2d 201 (1966), in support of its argument that appellants have a compensable mental-physical claim. Further, appellee relies on Breeden v. W......
  • Deller v. Naymick, No. CC950
    • United States
    • Supreme Court of West Virginia
    • November 21, 1985
    ...coemployees is the same as the immunity from tort liability provided by W.Va.Code, 23-2-6 [1974] to an employer. See Bennett v. Buckner, 150 W.Va. 648, 654, 149 S.E.2d 201, 205 (1966). This statutory immunity of a coemployee is not violative of the due process provisions of the State and Fe......
  • Jenrett v. Smith, No. 15873
    • United States
    • Supreme Court of West Virginia
    • December 15, 1983
    ...purposes of worker's compensation. See W.Va.Code, 23-4-1 [1976]. We reject the appellant's assertion that the case of Bennett v. Buckner, 150 W.Va. 648, 149 S.E.2d 201 (1966), mandates the granting of the motion for summary judgment. A decision by the worker's compensation commissioner to t......
  • O'DELL v. Miller, No. 29776.
    • United States
    • Supreme Court of West Virginia
    • May 23, 2002
    ...v. Kirkhart, 130 W.Va. 550, 561, 44 S.E.2d 634, 641 (1947), superseded by statute on other grounds as stated in Bennett v. Buckner, 150 W.Va. 648, 149 S.E.2d 201 (1966). Interestingly, this statute is quoted by the majority with the portion of the statute guaranteeing peremptory challenges ......
  • Request a trial to view additional results
17 cases
  • Marlin v. Bill Rich Const., Inc., No. 23121
    • United States
    • Supreme Court of West Virginia
    • February 19, 1997
    ...compensable under the workers' compensation law as it existed at the time of the injury. Appellee relies on Bennett v. Buckner, 150 W.Va. 648, 149 S.E.2d 201 (1966), in support of its argument that appellants have a compensable mental-physical claim. Further, appellee relies on Breeden v. W......
  • Deller v. Naymick, No. CC950
    • United States
    • Supreme Court of West Virginia
    • November 21, 1985
    ...coemployees is the same as the immunity from tort liability provided by W.Va.Code, 23-2-6 [1974] to an employer. See Bennett v. Buckner, 150 W.Va. 648, 654, 149 S.E.2d 201, 205 (1966). This statutory immunity of a coemployee is not violative of the due process provisions of the State and Fe......
  • Jenrett v. Smith, No. 15873
    • United States
    • Supreme Court of West Virginia
    • December 15, 1983
    ...purposes of worker's compensation. See W.Va.Code, 23-4-1 [1976]. We reject the appellant's assertion that the case of Bennett v. Buckner, 150 W.Va. 648, 149 S.E.2d 201 (1966), mandates the granting of the motion for summary judgment. A decision by the worker's compensation commissioner to t......
  • O'DELL v. Miller, No. 29776.
    • United States
    • Supreme Court of West Virginia
    • May 23, 2002
    ...v. Kirkhart, 130 W.Va. 550, 561, 44 S.E.2d 634, 641 (1947), superseded by statute on other grounds as stated in Bennett v. Buckner, 150 W.Va. 648, 149 S.E.2d 201 (1966). Interestingly, this statute is quoted by the majority with the portion of the statute guaranteeing peremptory challenges ......
  • Request a trial to view additional results

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