Damron v. State Comp. Comm'r

• Decision Date: 16 September 1930
• Docket Number: (No. 6822)
• Citation: 109 W.Va. 343
• Court: West Virginia Supreme Court
• Parties: Attie Damron v. State Compensation Commissioner

109 W.Va. 343

Attie Damron

v.State Compensation Commissioner

(No. 6822)

Supreme Court of Appeals of West Virginia.

Submitted September 3, 1930.

Decided September 16, 1930.

1. "Where an employee voluntarily remains on the premises ot his employer for about three hours following the completion of the night shift in which he was engaged, during practically all of which period of his remaining on the premises he was asleep in a motor barn, and, after the lapse of said time he was injured by having his foot run over by a mine motor while he was still asleep, the compensation commissioner was warranted in holding that the injury was not received by the claimant in the course of and resulting from his employment.

Litz and Wood, Judges, dissenting.

Proceedings under the Workmen's Compensation Act by Attie Damron. The State Compensation Commissioner denied relief, and claimant appeals.

Affirmed.

Robert E. White, for appellant.

Howard B. Lee, Attorney General, and R. Dennis Steed, Assistant Attorney General, for respondent.

Maxwell, Judge:

This claim was disallowed by the commissioner on the ground that the injury complained of by the claimant "did not occur in the course of and resulting from the employment.''

The undisputed facts are that claimant, Attie Damron, was admitted to the employ of the Buffalo Creek Coal & Coke Company as a coal loader on September 26, 1927, but, due to a shortage of men, he was put to work that evening as a helper on a cutting machine. Upon coming out of the mine at about four o 'clock the next morning, he went to the electric shop or motor barn which was located about sixty feet from the mine mouth, where he fell asleep. At seven o'clock that morning an electric motor which was being taken into the barn ran over Damron's left foot and injured it so severely that amputation of the left leg a few inches below the knee was necessary.

As to why Damron went to the motor barn in the first instance, there is a conflict of testimony. He testifies that on the evening of September 26th in a conversation with S. C. Scholl, mine superintendent, and C. P. Woody, mine foreman, he, Damron, objected to working on the machine as a steady job but was requested by Woody to go ahead and work on the machine that night and wait at the shop for him the next morning where he, Woody, would give him an order for checks and arrange for bis regular employment of loading coal. This conversation is corroborated in great part by one Jasper Sexton, a fellow worker of Damron's and at whose home Damron stayed. Sexton says that Woody did not say exactly where he would meet Damron in the morning, but that as Damron started away he, Damron, called back and said he would wait for Woody at the electric shop, to which remark Woody replied that that was all right,

R. L. Johnson testifies that a short time after the accident Woody told him that he had told Damron to wait for him in the electric shop. Wni. Osborn who was present with Johnson at the time of this conversation testifies to the same effect. This covers the testimony for claimant as to why he went to the shop.

As to the events preceding the accident, Damron says he came out of the mine at about four o'clock, asked R. L. Blankensliip, night man in charge of the shop, if he could go into the shop, and was told by Blankensliip to go in and lie down. This he did and went to sleep and avers that he knew nothing until the accident occurred.

In conflict with this testimony, Woody says that Damron had no arrangement to meet him at the electric shop on the morning of September 27, 1927, and that he does not know why Damron went there. He further says that no one was allowed to loaf in the motor barn, and it was not customary for the machine men to come there after they had finished their shift. He testifies that he found Damron asleep in the shop at about six thirty-five o'clock lying along the track, and that he tried to arouse him and told him to get up and go out as he would get hurt, but that Damron after rising up "hunkered" down again. He further testifies that after the accident he asked Damron why he wanted to lie down again after being aroused, and Damron said that he did not recall being awakened.

Scholl, the mine superintendent, does not testify as to the alleged conversation on the evening of September 26th between him and Woody and Damron, but he does say that when he went to Damron immediately after the injury and asked him why he had not gone home with the machine men, Damron replied in substance that he did not know whether Jasper Sexton had gone home or not and that he did not like to go to his room in the Sexton home at that time of night. A. B. Tilley, the machine cutter with whom Damron worked that night, says that Damron went to sleep on the cutter bar of the machine, and that he tried to arouse him and get him to accompany him from the mine but that Damron would not go. R. L. Blankenship, the night man at the shop, testifies that he went to the mine mouth, and aroused Damron from the cutter bar, whereupon Damron asked him if anyone was in the shop. Blankenship told him no. He further testifies that he later found Damron asleep in the shop with his feet across the track, and he asked him to get up so that he could shift the motors; that Damron got up but when he, Blankenship, returned later to get his dinner bucket, Damron was still asleep, and that he aroused him again and asked him to go off the hill with him, and Damron said all right but did not go.

In seeking a proper solution of the question as to whether claimant's injury was received by him while in the service of his employer, a primary inquiry is whether claimant went to the motor barn in compliance with an arrangement with the mine foreman with reference to claimant's employment. In the light of the above recited testimony, it would be difficult to resolve the issue on this matter in favor of claimant. If he had in fact gone to the motor barn in pursuance of an arrangement with the mine foreman, the high probability is that following the injury, in reply to superintendent Scholl's inquiry as to why he had not gone off the hill, he would have replied in substance that he had remained: on the hill, at the motor barn, in pursuance of his arrangement with the mine foreman to see him there in the early morning, and would not have said that the reason that he had not left the hill was that he did not desire to return to his landlord's home at that early hour. It seems almost inconceivable that under such circumstances the claimant would not have given the true reason; yet he would have us now believe that he did. not give the true reason. This strongly supports the commissioner's adverse finding. It is unlikely, too, that a mine foreman would undertake to arrange with a workman whom the foreman knew would in all probability be leaving the night shift in the very early hours of the morning to wait three or four hours to see him (the foreman) about a matter which required only informal attention and could be attended to at a later hour in the clay. The commis- si oner's adverse finding is not only backed up by these circumstances but is likewise predicated on appreciable testimony already narrated. Such a finding should not be disturbed by this Court. Kincannon...