Bilchak v. State Workmen's Compensation Commissioner

• Decision Date: 01 July 1969
• Docket Number: 12812,Nos. 12811,s. 12811
• Citation: 153 W.Va. 288,168 S.E.2d 723
• Court: West Virginia Supreme Court
• Parties: Anna BILCHAK, Widow of Michael Bilchak v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Hancock Manufacturing Company. Sally Ann DURST, Widow of Roe C. Durst v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Hancock Manufacturing Company.

Page 723

168 S.E.2d 723

153 W.Va. 288

Anna BILCHAK, Widow of Michael Bilchak v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Hancock

Manufacturing Company.

Sally Ann DURST, Widow of Roe C. Durst v. STATE WORKMEN'S COMPENSATION COMMISSIONER and Hancock

Manufacturing Company.

Nos. 12811, 12812.

Supreme Court of Appeals of West Virginia.

Submitted April 29, 1969.

Decided July 1, 1969.

Syllabus by the Court

1. 'An injury incurred by a workman, in the course of his travel to his place of work and not on the premises of the employer, does not give right to participation in such fund, unless the place of injury was brought within the scope of employment by an express or implied requirement in the contract of employment, of its use by the servant in going to and returning from his work.' Point 2, syllabus, De Constantin v. Public Service Commission, 75 W.Va. 32 (83 S.E. 88, L.R.A.1916A, 329).

2. 'It is a general rule that if an employee en route to or from his work, is injured on the property of the employer, not within the zone of employment, compensation may not be awarded.' Point 2, syllabus, Taylor v. State Compensation Commissioner, 116 W.Va. 13 (178 S.E. 71).

3. 'An injury, resulting in death, received by an employee while traveling upon a public highway in the same manner and for like purposes as the general public travels such highway, and not in performance of his duties for his employer, is not an injury received in the course of employment within the meaning of the Workmen's Compensation Act and is, therefore, not compensable.' Syllabus, Buckland v. State Compensation Commissioner, 115 W.Va. 323 (175 S.E. 785).

Charles D. Bell, Wellsburg, for appellants.

Pinsky, Mahan, Barnes & Watson, Raymond A. Hinerman, Wellsburg, for appellees.

BERRY, Judge.

These appeals from the Workmen's Compensation Appeal Board which were consolidated for the purposes of argument and decision in this Court involve identical matters. The claimants, Anna Bilchak, widow of Michael Bilchak, and Sally Ann Durst, widow of Roe C. Durst, were denied compensation by the Workmen's Compensation Commissioner for the deaths of their husbands who were drowned in the Ohio River while attempting to row a boat across the river from the Ohio side where they lived to the West Virginia side where they were employed. An appeal was taken by the claimants to the Workmen's Compensation Appeal Board which reversed the Commissioner and allowed compensation. The employer of the deceased men, Hancock Manufacturing Company, applied for an appeal from the order of the Appeal Board, which application was granted on March 10, 1969, and the consolidated cases were submitted for decision upon arguments and briefs at the April Special 1969 Docket of this Court.

The deceased employees of the Hancock Manufacturing Company lived in Toronto, Ohio, which is located across the Ohio River, a mile or so downstream from the appellant's plant located in New Cumberland, West Virginia. The deceased men had been employed by the appellant for about 30 years and it was their custom to row across the river in a boat which was owned by Durst although both he and Bilchak had a key to the lock securing the chain by which the boat was moored. The boat was docked near the plant and at the end of their shift they would go back across the river to their homes. The reason for the use of the boat in going to and from their work was that it only took them about ten minutes to row the few hundred yards across the river, whereas, if they used the public highway they would have to drive down the highway on the Ohio side, cross a bridge to the West Virginia side, and drive up the highway to the plant, a trip of some 15 to 18 miles by highway from their homes in Ohio requiring usually over an hour to drive in an automobile. When the boat used by the deceased men was on the Ohio side of the river it was docked or chained to a fixed object on the property of the Ohio Edison Company. When the boat was on the West Virginia side of the river it was similarly secured on the property of the appellant, and they only had a few hundred feet to walk to the plant where they worked. The boat could not be used by other persons without first obtaining permission from the deceased men as they were the only ones who had keys to the lock by which the boat was secured on each side of the river.

On the morning of September 3, 1965 it was foggy and the deceased men left their homes at the usual time around 6 o'clock to meet at the boat. They drove their cars to the usual place and parked them on the Ohio side of the river. The men did not show up for work that morning at the West Virginia plant and a call was made by one of the plant officials to Mrs. Bilchak from whom he ascertained that the men had left for work. About the middle of the morning a search was begun for the men, and after considerable searching the two bodies and the boat were found at various points extending down the river several miles from where the men started to cross.

There is no evidence as to what occurred on the morning of September 3, 1965 except that the boat was damaged as if it had been in a collision. The oar locks were torn loose and one of the seats had been jerked out and apparently most of the damage was to the right side of the boat. It is not known with what the boat collided and in what direction it was going at the time of the collision. In the winter when ice was on the river, the boat was not used and they would drive to work in their automobiles. The evidence is not clear as to the number of people who used the boat in question in traveling to and from work at the employer's plant. It appears that as many as 10 or 12 men had over some years used this means of transportation although apparently it was not used by all of the men regularly.

Between the years 1943 and 1945 during World War II when gasoline rationing was in effect, the company maintained a private boat service and transported numerous employees back and forth across the river, but this service was discontinued after the War. However, the employer kept a boat for its own use and some time in 1960 or 1961 it purchased a fiberglass boat which was light, with high sides, making it difficult to row and the employees did not like to use it. On occasions when Durst or other employees were requested to cross the river on company business Durst would use his own boat. The employer also owned a plant on the Ohio side where the two deceased men were at times employed when the plant on the West Virginia side was not working. It appears that neither one had been employed at the plant on the Ohio side for some time before the accident occurred.

The employer from time to time found it necessary to transport materials and persons across the river to the other plant. Materials and personnel were also transported on the highway and across the river to the other plant. However, it appears that it would not take as long by crossing the river. Samples of steel products and company supervisors were at times taken across the river in the boat owned by Durst either with Durst operating it or some other person connected with the company using it. No consistent pattern was used in connection with the company business and the Durst boat but it is clear that Durst and other employees preferred using the Durst boat instead of the company boat when company business was involved. The company on one occasion, upon request, gave Durst some paint to paint his boat and also furnished him a pair of oars which were apparently surplus items. A company official testified that these gifts were made on the basis of personal friendship and not for any company business. Durst possibly had at times used the company boat for his own purposes and his own boat was used by him for recreational purposes such as fishing. There is no evidence whatsoever that the Durst boat was being used for any company purpose on the day of the fatal accident.

The company's policy with regard to the use of the boat for coming and going to work across the Ohio River by employees was not governed by any written or oral rules. However, it is clear the employer had not affirmatively approved of such transportation by way of furnishing boats since the end of World War II, and on occasions it appears that such means of transportation had been discouraged because of the danger involved during bad weather when fog or ice was present on the river. Both Durst and Bilchak had on a few occasions attempted to use the boat and had turned back either when the fog was discovered or ice was in the river and had consequently made the trip to the plant by automobile.

A company official testified that the employer owned the land under the Ohio River to the low water mark on the Ohio side. The claimants contend that this evidence, which was not contradicted, indicates that Durst and Bilchak were on the company's premises while attempting to cross the river. However, there is no question that the Ohio River is a navigable stream and can be used by the public for the purpose of transportation. There is also no question but that the boat was tied up on the Ohio side on property owned by the Ohio Edison Company and not the employer.

The appellees filed a written motion to dismiss this appeal as improvidently awarded because the appellant is a foreign corporation qualified to do business in the State of West Virginia and was granted the appeal without first posting a bond as required by law. There is no merit to this contention. The appellant Hancock Manufacturing Company is an Ohio corporation qualified to do business in the State of West Virginia, and having done so, has all the rights, powers and privileges of, and is subject to the same regulations, restrictions and...