Davis v. State Comp. Comm'r

• Citation: 113 W.Va. 569
• Decision Date: 18 April 1933
• Docket Number: ( No. 7592)
• Court: Supreme Court of West Virginia
• Parties: Velvie M. Davis v. State Compensation Commissioner

113 W.Va. 569

Velvie M. Davis

v.State Compensation Commissioner

(No. 7592)

Supreme Court of Appeals of West Virginia.

Submitted April 11. 1933.

Decided April 18. 1933.

Master and Servant

A case in which the evidence warrants the finding of the Compensation Commissioner.

Litz, Judge, absent.

Proceedings under the Workmen's Compensation Act by Velvie M. Davis to recover compensation for the death of her husband, James E. Davis, employee. Prom an adverse finding of the State Compensation Commissioner, the claimant appeals.

Affirmed.

Everett F. Moore, for appellant.

Homer A. Holt, Attorney General, and Kenneth E. Hines, Assistant Attorney General, for respondent.

Woods, Judge:

Velvie M. Davis appeals from a finding of the compensation commissioner, after a statutory hearing, that the death of her husband, James E. Davis, on January 1, 1932, was not due to an injury received in the course of and resulting from his employment.

The claim is based on the theory that the hemorrhage causing death resulted from a strain received in the mine just before quitting time on the afternoon of December 21. 1931, while Davis and John McCave, a cousin or brother-in-law, were attempting to balance a six-ton motor on the track with a rail. McCave, who testified to the lifting, said that Davis remarked at the time that it made him blind and dizzy, and shortly thereafter, on the way out of the mine, that he didn't feel right. According to the claimant, Davis complained of not feeling good, on returning home that evening, and that he never left the house thereafter, except for a few minutes Christinas morning. A number of relatives, including the wife, testified that Davis had informed them that he had strained himself while in the mine. The day after Christmas a doctor was called. He diagnosed the condition at the time as influenza, The doctor returned on the 28th. and again on January 1st. On the latter date, he found his patient suffering from a "desperate condition of shock". A death certificate was executed on January 4th, in which the doctor attributed death to internal hemorrhage, and as the contributory cause of importance not related to principal cause, "lifting a car".

The company officials, so far as the record discloses, had no knowledge of the alleged injury until after Davis' death, when the father appeared and made a request that the alleged accident be reported to the compensation commissioner. McCave testified that the company office was closed at the time he and Davis left the mine. And while he stated, on preliminary investigation, that he saw the foreman at the mouth of the mine on December 21st, on the hearing, he denied seeing any of the company's representatives. The superintendent and two clerks deny that the office was closed at the time Davis came out of the mine,...