Canoy v. State Comp. Comm'r

• Citation: 170 S.E. 184
• Decision Date: 30 May 1933
• Docket Number: No. 7543.,7543.
• Court: Supreme Court of West Virginia
• Parties: CANOY. v. STATE COMPENSATION COMMISSIONER.

170 S.E. 184

CANOY.
v.
STATE COMPENSATION COMMISSIONER.

No. 7543.

Supreme Court of Appeals of West Virginia.

May 30, 1933.

Rehearing Denied Aug. 2, 1933.

Syllabus by the Court.

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., 83 S. E. 88, L. R. A. 1916A, 323.

HATCHER, J., dissenting.

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.

Christie & Christie and Ira J. Partlow, all of Welch, for appellant.

[170 S.E. 185]

Homer A. Holt, Atty. Gen., and R. Dennis Steed, Asst. Atty. Gen., for State Compensation Commissioner.

H. R. Hawthorne, of New York City, and Crockett & Tucker, of Welch, 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, W. Va. He was killed while walking on state route No. 8 by being run down by an automobile on the afternoon of October 10, 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...