Billings v. State Comp. Comm'r., (No. 9207)

CourtSupreme Court of West Virginia
Writing for the CourtRILEY.
Citation123 W.Va. 498
PartiesW. C. Billings v. State Compensation Commissioneret al.
Decision Date30 September 1941
Docket Number(No. 9207)

123 W.Va. 498

W. C. Billings
v.
State Compensation Commissioner
et al.

(No. 9207)

Supreme Court of Appeals of West Virginia.

Submitted September 9, 1941.
Decided September 30, 1941.


[123 W.Va. 498]

1. Workmen's Compensation

Actual knowledge by an employee of a safety rule, made effective in accordance with Code, 23-4-2, is unnecessary to make its violation wilful within the meaning of the statute, where the record discloses that the employee refrained from taking notice of the rule.

2. Workmen's Compensation

Under Code, 23-4-2, wilful misconduct will not bar compensation unless the injury is the result thereof.

3. Workmen's Compensation

Under the Workmen's Compensation Law (Code, 23-4-2) wilful misconduct of an employee acquiesced in by the employer does not preclude compensation.

4. Workmen's Compensation

On an "appeal" from the Workmen's Compensation Appeal Board this Court will not determine a question in the first instance which has not been fully developed or which has not been considered by the Commissioner and the Appeal Board.

Appeal from Workmen's Compensation Appeal Board. Proceeding under the Workmen's Compensation Act

[123 W.Va. 499]

Sept. 1941] Billings v. Comp. Comr.

499

by W. C. Billings, compensation claimant, against the Turkey Gap Coal & Coke Company, employer. From an order of the Compensation Appeal Board affirming an award of the State Compensation Commissioner to the compensation claimant, the employer appeals.

Reversed and remanded.

Sanders & Day, for appellant. Hillis Townsend, for appellee.

Riley, Judge:

Turkey Gap Coal & Coke Company complains of an order of the Compensation Appeal Board affirming the Commissioner's award to W. C. Billings of a seventeen per cent permanent partial disability for the loss of two fingers and an injury to the thumb of his right hand.

The claim was resisted by the employer on the grounds that Billings was guilty of (1) wilful disobedience of safety rule No. 7, which provides, in part: "Cleaning sand pipes or sanding rails by hand while the motor or locomotive is in motion is prohibited"; and (2) wilful misconduct under Code, 23-4-2, in getting off his motor while it was running and walking beside it while unattended for the purpose of cleaning the sand pipes. Although no reasons were given by the Commissioner in making the award, the Appeal Board based its action on the grounds that claimant was not guilty of wilful violation of rules or wilful misconduct as contemplated by the statute.

On or about June 21, 1940, claimant, an experienced motorman, was operating a supply motor in appellant's Modoc mine. While pushing five mine cars, loaded with mine props, up a slight grade on a straight track about two hundred feet within the mine, the wheels of the motor began to spin. Claimant upon discovering that the operation of the sand levers failed to release the sand to the rails, got off the motor while it was running, and, leaving it unattended, took the top from one of the sand boxes and began knocking the sand pipes with it for the purpose of opening the same. In some unknown manner

[123 W.Va. 500]

Billings v. Comp. Comr. [Sept. 1941

his hand was caught under the wheels of the motor and the injury sustained. Claimant was alone at the time of the accident. The only light in the mine at the time and place was that carried on his cap.

Claimant went to work at Modoc mine about six o'clock on the evening of the accident. He first pulled some "clean-up" loads, and picked up four cars of rock which he dumped on the other side of the mountain. In unloading the rock he found that the sand pipes on the motor had become clogged. Next, he picked up some rails, brought them through the mine and unloaded them. He then went to the drift mouth of the Modoc mine for the purpose of loading mine props, which were located about fifty feet from the mine mouth. On the way he passed the sand house but did not put dry sand in the sand boxes. He and his helper, Clifton McKinney, then loaded five mine cars with props, and claimant, using his motor, pushed the cars into the mine, where he was injured.

The motor had four sand boxes, each being 6x8x18 inches. From the bottom of each a sand pipe extended toward the rail. This pipe was about three or four inches long, the opening at the lower end thereof being seven or eight inches from the wheel. In the event the flow of sand can not be controlled by use of the levers, the sand pipes may be cleaned either by knocking them with a...

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15 practice notes
  • Geeslin v. Workmen's Compensation Com'r, No. 15287
    • United States
    • Supreme Court of West Virginia
    • July 2, 1982
    ...not bar compensation unless Page 151 the injury is the result thereof." Syllabus Point 2, Billings v. State Compensation Commissioner, 123 W.Va. 498, 16 S.E.2d 804 McIntyre, Haviland & Jordan and Terry M. Jordan, Charleston, for appellant. Kay, Casto & Chaney, Michael T. Chaney and Stephen ......
  • Hall v. State Workmen's Compensation Com'r, No. 15709
    • United States
    • Supreme Court of West Virginia
    • May 25, 1983
    ...or which has not been considered by the Commissioner and the Appeal Board." Syl. pt. 4, Billings v. State Compensation Commissioner, 123 W.Va. 498, 16 S.E.2d 804 Barnes, Watson, Cuomo, Hinerman & Fahey, Frank Cuomo, Jr. and Mark B. Chernenko, Wellsburg, for appellant. Page 727 Schrader, Sta......
  • Barta v. State Comp. Comm'r Et At., (No. 9794)
    • United States
    • Supreme Court of West Virginia
    • February 19, 1946
    ...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 u......
  • Barta v. State Comp. Comm'r, No. 9794.
    • United States
    • Supreme Court of West Virginia
    • February 19, 1946
    ...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 unn......
  • Request a trial to view additional results
15 cases
  • Geeslin v. Workmen's Compensation Com'r, No. 15287
    • United States
    • Supreme Court of West Virginia
    • July 2, 1982
    ...not bar compensation unless Page 151 the injury is the result thereof." Syllabus Point 2, Billings v. State Compensation Commissioner, 123 W.Va. 498, 16 S.E.2d 804 McIntyre, Haviland & Jordan and Terry M. Jordan, Charleston, for appellant. Kay, Casto & Chaney, Michael T. Chaney and Stephen ......
  • Hall v. State Workmen's Compensation Com'r, No. 15709
    • United States
    • Supreme Court of West Virginia
    • May 25, 1983
    ...or which has not been considered by the Commissioner and the Appeal Board." Syl. pt. 4, Billings v. State Compensation Commissioner, 123 W.Va. 498, 16 S.E.2d 804 Barnes, Watson, Cuomo, Hinerman & Fahey, Frank Cuomo, Jr. and Mark B. Chernenko, Wellsburg, for appellant. Page 727 Schrader, Sta......
  • Barta v. State Comp. Comm'r Et At., (No. 9794)
    • United States
    • Supreme Court of West Virginia
    • February 19, 1946
    ...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 u......
  • Barta v. State Comp. Comm'r, No. 9794.
    • United States
    • Supreme Court of West Virginia
    • February 19, 1946
    ...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 unn......
  • Request a trial to view additional results

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