Canoy v. State Comp. Comm'r, (No. 7543)

• Citation: 113 W.Va. 914
• Decision Date: 30 May 1933
• Docket Number: (No. 7543)
• Court: Supreme Court of West Virginia
• Parties: Mrs. R. W. Canoy v. State Compensation Commissioner

113 W.Va. 914

Mrs. R. W. Canoy

v.State Compensation Commissioner

(No. 7543)

Supreme Court of Appeals of West Virginia.

Submitted April 11, 1933.

Decided May 30, 1933.

(Rehearing denied August 2, 1933)

Master and Servant

Injury or death of an employee of a subscriber to the Compensation Fund occurring upon a public highway and not on the premises of the employer, gives right to participate in the fund, when "the place of injury was brought within the scope of employment by an express or implied requirement of the contract of employment, of its use by the servant in going to and returning from work". De Constantin v. Commission, 75 W. Va. 32 Pt. 2, Syl., 88 S. E. 88, L. R. A. 1916A, 329.

Litz, Judge, absent.

Proceedings under the Workmen's Compensation Act by Mrs. R. W. Canoy to recover compensation for the death of her husband, R. W. Canoy, opposed by the Pocahontas Fuel Company, employer. From an order of the State Compensation Commissioner denying compensation, the claimant appeals.

Reversed.

Hatches, Judge, dissents.

Christie & Christie and Ira J. Partlow, for appellant.

Homer A. Holt, Attorney General and R. Dennis Steed, Assistant Attorney General, for State Compensation Commissioner.

H. B. Hawthorne and Crockett & Tucker, for Pocahontas Fuel Company, Inc.

Kenna, Judge:

R, W. Canoy was a slate and timber man in the mines of Pocahontas Fuel Company at Switchback, West Virginia. He was killed while walking on state route No. 8 by being run down by an automobile on the afternoon of October 16, 1931. On the application of his dependent widow, the commissioner denied compensation for the reason that the injury causing death did not occur in the course of and result from the employment of deceased by the company. The widow appealed.

The proof before the commissioner discloses that state route No. 8 bisects the property of Pocahontas Fuel Company for a distance of approximately one mile at its Switchback operation. There are dwelling houses for the use of the employees of the company located on both sides of this highway. The particular mine in which Canoy was employed was located some three hundred yards beyond the highway and on the opposite side of it from the dwelling that he occupied. His right to occupy this house arose under a written agreement with the company expressly stating that it is not to be construed as creating the relationship of landlord and tenant, and containing the following paragraph by way of recital: "That whereas, the party of the first part (the company) is engaged in the business of mining and shipping coal and, as a part of its plant and equipment necessary for the operation and conduct of its said business, owns and maintains houses for the occupancy of its employees as incidental to their employment while they are engaged in working for it, and no longer; * * Payment for his occupancy was collected over the payroll. Canoy was paid for the actual time employed in his work for the company. Although he had regular hours of employment, he was subject to be called at any time. On the morning of the accident, he had gone to work at the mine referred to at about seven-thirty o'clock in the morning. He had remained at work until four in the afternoon, when he boarded an out coming "trip" of cars, with the other employees, and on it rode as far as the drift month At the drift mouth, with the others, he got off the "trip" and walked down a path customarily used by the employees of the company living across the highway from the mine, to the public highway. This path was the location of an old tramway and on it, next to the mine mouth, for a short way, had been constructed some wooden steps, evidently placed there by the company for the use of those traveling the path. Immediately opposite the point at which Canoy came to the highway, according to the testimony from the plat filed, the continuation of the path on the other side did not run from a point immediately opposite the end of the path on the side from which Canoy approached the road. The testimony shows that it was customary for those desiring to cross the road at this point, to walk laterally along the road some few feet before crossing. An automobile traveling at a high rate of speed struck and killed Canoy at about the point that this lateral walking on the highway was usually done by persons so crossing. The testimony is in slight conflict as to whether, when struck, he was actually on the paved portion of the road or was on what might be described as the dirt shoulder or berm. This conflict is not regarded as material. The testimony is to the effect that, for persons living in dwellings in the same neighborhood as Canoy, the only feasible and commonly used way of reaching the mine where he was employed, from their homes was by traveling on foot by a well-defined route to the point of crossing the highway where Canoy was attempting to cross, then crossing the highway in the manner that he was attempting to cross, then going from the highway, using the footpath and stairs, to the drift mouth, from where transportation of the company carried them to their actual places of work inside the mine.

There seems to be but one question presented in this record. There is no question raised as to the widow's right or as to the basis of dependency that she sets up. There is no question as to the regularity and sufficiency of her application nor any of the formal matters connected with the claim. There is no material conflict as to the facts. The question is whether, under this state of facts, the injury which resulted in the death of claimant's decedent was inflicted under such circum- stances as would justify us in holding that it occurred in the course of and resulted from his employment.

Courts have differed widely in their decisions of questions involving compensability for accidents occurring not on the premises of the employer, while the employee was going to or from work. Careful running of the whole unbalanced gamut of decided cases, from the early English compensation cases to those of the various states of the union, results in the formulation of only one general rule, and...