Cramblitt v. Standard Acc. Ins. Co.

• Citation: 180 S.E. 434,116 W.Va. 359
• Decision Date: 04 June 1935
• Docket Number: C. C. 515.
• Parties: CRAMBLITT v. STANDARD ACC. INS. CO. et al.
• Court: Supreme Court of West Virginia

180 S.E. 434

116 W.Va. 359

CRAMBLITT v. STANDARD ACC. INS. CO. et al.

C. C. No. 515.

Supreme Court of Appeals of West Virginia.

June 4, 1935

Submitted May 1, 1935.

Syllabus by the Court.

Injuries sustained by an employee while being transported by his employer to the place of his employment under an independent contract for hire, and not by virtue of his contract of employment, are not within the Workmen's Compensation Act; and a declaration in assumpsit, waiving the tort and suing on the employer's contract of carriage for damages due to such injuries, is not demurrable on the ground that such injuries are compensable.

From the Circuit Court, Fayette County.

Action by J. S. Cramblitt against the Standard Accident Insurance Company and others. A demurrer was sustained to an amended declaration and the ruling certified for review.

Ruling reversed, and demurrer overruled.

Lilly & Lilly, Kay & Casto, and W. Elliott Nefflen, all of Charleston, for plaintiff.

Love & Love and Dillon, Mahan & White, all of Fayetteville, for defendants.

WOODS Judge.

This certificate involves the sufficiency of an amended declaration, the demurrer thereto having been sustained.

The declaration is in assumpsit. The first three counts allege in substance, that the Elkhorn Piney Coal Mining Company, the operator of a mine at Elkridge, Fayette county, was engaged in the business of transporting by bus, for hire and reward the plaintiff and such other of its employees as might choose to avail themselves of such transportation, from their homes to the mine aforesaid each morning, and from said mine back to their homes each afternoon; that plaintiff was charged a certain amount of money each month, to wit, the sum of $7.20 which amount was deducted from his earnings as coal loader at the end of the month; that on the morning of May 5, 1933 plaintiff, upon the invitation of said coal company's agents, boarded the bus, as a passenger for hire, for the purpose of being transported to the mine aforesaid, where he was employed as a coal loader; that while so transporting the plaintiff the bus was wrecked, due to certain acts of omission and commission in the maintenance and operation of said bus; that plaintiff, due to injuries received in such wreck, has been damaged to the extent of $25,000, wherefore he brings his action. The fourth count sets up that defendant was a common carrier of passengers along a certain route, and that on the day aforesaid, plaintiff was accepted as a passenger for hire, etc. The Standard Accident Insurance Company was joined as a defendant by virtue of the provisions of the "West Virginia Compulsory Automobile Insurance Endorsement," which was attached to and made a part of the coal company's insurance, as a condition to the issuance of the class J license under which the bus involved was operated.

The initial inquiry raised by the demurrer is whether the injury declared on was received in the course of and as a result of plaintiff's employment, within the meaning of our Workmen's Compensation Act (Code 1931, 23-1-1 et seq.).

An injury suffered by an employee in going to or returning...