Buckland v. State Comp. Comm'r.

• Decision Date: 11 September 1934
• Docket Number: (No. 8014)
• Court: West Virginia Supreme Court
• Parties: Rebecca Buckland v. State Compensation Commissioner et al.

115 W.Va. 323

Rebecca Buckland

v.State Compensation Commissioner et al.

(No. 8014)

Supreme Court of Appeals of West Virginia.

Submitted September 5, 1934.

Decided September11, 1934.

Master and Servant

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.

Proceedings by Rebecca Buckland to recover compensation for the death of W. H. Buckland, an employee of the Pond Creek Pocahontas Company. From a judgment of the State Compensation Commissioner denying compensation, the claimant appeals.

Affirmed.

Hoagland French, for appellant.

Homer A. Holt, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for respondent. Sale, St. Clair & Sale, for Pond Creek Pocahontas Co.

Kenna, Judge:

W. H. Buckland was employed at the picking table on the No. 3 tipple of Pond Creek Pocahontas Company at Bartley, West Virginia. He was killed on the night of August 19, 1932, on State Route No. 83 by being struck by the eastbound Dry Fork bus, while returning to his home from his work. His dependent widow applied for compensation which was refused by the commissoner on the ground that the injury that resulted in the death of claimant's decedent was not received in the course of and resulting from his employment. The finding was protested, a hearing held, the original decision of the commissioner affirmed by him, and this appeal prosecuted.

There is little conflict in the proof, both ex parte and at the hearing before the commissioner, and the circumstances of the employment and of the accident may be briefly stated. The tipple of No. 3 mine of the defendant company at Bartley, where decedent was employed, is located on the west side of the Dry Fork of Tug River. State Route No. 83 is on the east side of the stream and parallels it. The state road is reached from the tipple by crossing a bridge over the creek, coming first to and traveling along a dirt road that runs north almost parallel with the state route, until it connects with that highway a distance of some 200 yards from the bridge. From the point where the dirt road connects with the state route, that route follows the creek for several hundred yards almost due north, and then swings with the creek around a bend generally to the southeast for several hundred yards, and reaches a point from which it turns again almost due north, passing the house in the No. 500 camp of the company occupied by W. H. Buckland at the time of his death. This house is located something over a mile from the tipple at which Buckland worked, stands near State Route No. 83, and is on the opposite side (eastern side) from the side (western side) of the highway on which the tipple stands. The property of the coal company lies on both sides of State Route No. 83 for the entire distance from the tipple to Buckland's home. There is no way to reach Buckland's home from the tipple except by traveling in some manner on State Route No. 83, unless the tracks of the Norfolk & Western Railway Company are used. The coal company does not furnish transportation for its men from their places of residence to their work. Buckland was accustomed to walking between his place of residence and his work at the tipple, except on those occasions when he could pick up a ride en route. The lease under which Buckland occupied his house is dated January 13, 1930, and contains the following language:

"Second: That it is expressly agreed by the Parties that the tenancy created by this contract is incident to...