Bradley v. State Comp. Comm'r, 6941.

• Decision Date: 10 February 1931
• Docket Number: No. 6941.,6941.
• Citation: 157 S.E. 42
• Court: West Virginia Supreme Court
• Parties: BRADLEY. v. STATE COMPENSATION COMMISSIONER.

157 S.E. 42

BRADLEY.

v.STATE COMPENSATION COMMISSIONER.

No. 6941.

Supreme Court of Appeals of West Virginia.

Feb. 10, 1931.

Syllabus by the Court.

To defeat the right of an employee or his dependents to compensation under the Workmen's Compensation Act on the ground that the injury resulted from his willful misconduct, the culpatory act or acts constituting the charge must be established by satisfactory evidence, in view of all the facts and circumstances in the case.

Appeal from State Compensation Commissioner.

Proceedings under the Workmen's Compensation Act by Claude Bradley, opposed by the Buffalo-Eagle Mines, Inc. The State Compensation Commissioner denied claimant recovery, and claimant appeals.

Reversed.

Roderick G. Merrick, of Charleston, and Titsworth & Titsworth, of Rushville, Ind., for appellant.

H. B. Lee, Atty. Gen., and R. Dennis Steed, Asst. Atty. Gen., for respondent.

LITZ, P.

Claude Bradley, unmarried, colored World War veteran, while engaged as a coal loader for the Buffalo-Eagle Mines, Inc., at Bracholm, Logan county, March 8, 1929, sustained an injury from powder explosion, resulting in the removal of one eye and practically total blindness to the other.

On January 29, 1930, the compensation commissioner, after an ex parte investigation, denied the claimant compensation on the ground that he was at the time of the injury using a short fuse, in violation of the mining laws of West Virginia. Upon a hearing, demanded by the claimant under section 43, c. 71, of the Acts of 1929, the commissioner, by order of September 29, 1930, adhered to his former ruling. Section 63, c. S8, Acts 1925, provides: "Every blasting hole shall be tamped, * * * full from the explosive to the mouth, and no coal dust or inflammable material shall be used for tamping. * * * No fuses shall be used unless permission is granted by the mine foreman and in no case shall fuses be used of less length than the drill hole." Section 28, c. 15P, Code 1923, in part, follows: "Notwithstanding any thing hereinbefore or hereinafter contained, no employee or dependent of any employee shall be entitled to receive any sum from the workmen's compensation fund, or to direct compensation from any employer making the election and receiving the permission mentioned in section fifty-four hereof, or otherwise under the provisions of this act, on account of any personal injury to or death of any employee caused by a self-inflicted injury, the willful misconduct, or disobedience to such rules and regulations as may be adopted by the employer and approved by the commissioner, and which rules and regulations have been and are kept posted in conspicuous places in and about the work. * * * " It is not claimed that the injury was self-inflicted; nor is there any proof that it was caused by disobedience to any rules or regulations "adopted by the employer and approved by the commissioner" which were kept posted in a conspicuous place about the work. Was he guilty of willful misconduct? If so, it consisted in his use of short fuse in violation of the statute.

Assuming that such act of a miner (as held in Venilli v. State Compensation Commissioner, 107 W. Va. 544, 149 S. E. 612) precludes him from compensation for resulting injuries, does the evidence in this case warrant the commissioner's finding of fact? Bradley was alone at the time of the accident. The room in which he was working was eighteen feet wide, thirty feet long, and four and one-half feet high. A shot in the center of the face and one in each rib were required to break the coal sufficiently for loading. He had bored and shot the center hole; and, after boring the hole in the left rib, was, as he claims, in the course of preparing the shot when the explosion occurred. He says that he was using pellet powder (in sticks about one inch in diameter and eight inches long) and squibs to ignite it; that it required two and one-half sticks to shoot the hole, which was three feet from the floor and about three and one-half feet deep; that, after inserting two, and while standing near the hole, he leaned to the left and picked up a tamping bar to shove the powder to the bottom of the hole, and in straightening up the light on his cap came in contact with the powder. The employer, vigorously contesting his right to compensation, contends that the circumstances disprove Bradley's story and establish the theory...