Eisnaugle v. Booth, No. 13599

CourtSupreme Court of West Virginia
Writing for the CourtBERRY; WILSON
PartiesWilliam James EISNAUGLE et al. v. Homer BOOTH.
Decision Date22 June 1976
Docket NumberNo. 13599

Page 259

226 S.E.2d 259
159 W.Va. 779
William James EISNAUGLE et al.
v.
Homer BOOTH.
No. 13599.
Supreme Court of Appeals of West Virginia.
Decided June 22, 1976.
Concurring Opinion July 1, 1976.
Rehearing Denied July 23, 1976.

Syllabus by the Court

1. Generally, where an injury is received by an employee on the employer's property near his place of work while the employee is going to work, such injury is deemed to have arisen in the course of and as a result of his employment, and where the injury is the proximate result of the negligence of a co-employee of an employer who subscribes to the Workmen's Compensation fund, the co-employee, by virtue of W.Va.Code, 23--2--6a, as amended, is immune from liability in a personal injury action initiated by the injured employee.

2. Neither gross negligence nor wanton misconduct are such as to constitute deliberate intention as contemplated by W.Va.Code, 23--2--6a, as amended.

Bogarad & Robertson, Martin S. Bogarad and William R. Kiefer, Weirton, for appellants.

Frank A. Pietranton, New Cumberland, for appellee.

BERRY, Chief Justice:

In this case, the appellants, William James Eisnaugle and Gay Eisnaugle, his wife, the plaintiffs in a personal injury action, appeal the judgment of the Circuit Court [159 W.Va. 780] of Hancock County which affirmed the judgment of the Common Pleas Court of Hancock County. The question presented here is whether the action is barred by the provisions of W.Va.Code, 23--2--6a, As amended, which grants immunity from liability to a co-employee in the instance of an injury which is compensable under the State Workmen's Compensation laws.

Page 260

At the time of the events giving rise to the action below, the appellant, James Eisnaugle, and the appellee, Homer Booth, were both employees of the National Steel Corporation in Weirton, West Virginia. On the evening of November 12, 1970, Eisnaugle and Booth were on their way to work. Eisnaugle had parked his car in the employer's private parking lot, which was adjacent to his place of employment and was walking to a location where he would punch a time card to begin work. While driving his personal automobile to park in the same parking area, Booth struck Eisnaugle and caused the injuries which were the subject of Eisnaugle's personal injury action. The abbreviated record indicates that Booth had been drinking and had been sent home afterward by company officials because of his alleged intoxication.

Following the commencement of the civil action in the Common Pleas Court of Hancock County, Booth moved the court for summary judgment, contending that he was immune from liability under W.Va.Code, 23--2--6a, As amended, because Eisnaugle's injuries were received in the zone of his employment and were compensable under the State Workmen's Compensation laws. Initially, the trial court denied the motion for summary judgment. However, upon resubmission with additional undisputed facts, the court granted the motion and dismissed the appellants' complaint.

Upon appeal to the Circuit Court of Hancock County, the judgment of the Common Pleas Court was affirmed.

The sole issue presented in this appeal is whether the appellee, a fellow employee of the appellant, is entitled [159 W.Va. 781] to immunity from liability in the action by reason of the statute.

Under the West Virginia compensation law, an employer who has elected to provide compensation coverage is immune from civil liability for the unintentional injuries suffered by its employees arising out of their employment. The pertinent part of W.Va.Code, 23--2--6, As amended, in effect at the time of the court's action below, reads as follows:

'Any employer subject to this chapter who shall elect to pay into the workmen's compensation fund the premiums provided by this chapter shall not be liable to respond in damages at common law or by statute for the injury or death of any employee, however, occurring, after such election and during any period in which such employer shall not be in default in the payment of such premiums and shall have complied fully with all other provisions of this chapter: Provided, that the injured employee has remained in his service with notice that his employer has elected to pay to the workmen's compensation fund the premiums provided by this chapter.'

W.Va.Code, 23--2--6a, As amended, extends the same immunity to an employee of an employer who subscribes to the Workmen's Compensation fund:

'The immunity from liability set out in the preceding section shall extend to every officer, manager, agent, representative or employee of such employer when he is acting in furtherance of the employer's business and does not inflict an injury with deliberate intention.'

As a general rule, where an injury is received by an employee on the employer's property near his place of work while the employee is going to work, such injury is deemed to have arisen in the course of and as a result of his employment. Bilchak v. Workmen's Compensation Commissioner, 153 W.Va. 288, 168 S.E.2d 723 (1969); 99 C.J.S. Workmen's Compensation § 234 (1958). This familiar exception to the 'going and coming' rule is articulated in the syllabus announced in Hager v. Compensation [159 W.Va. 782] Commissioner, 112 W.Va. 492, 165 S.E. 668 (1932):

'Where an employee is accidentally injured upon premises owned or controlled by the employer at a point reasonably proximate to the place of work, while the employee is going to or from his work on a permissible route in general use by the employees, such injury will be deemed to have...

To continue reading

Request your trial
9 practice notes
  • Deller v. Naymick, No. CC950
    • United States
    • Supreme Court of West Virginia
    • November 21, 1985
    ...with compensable claims. See W. Va. Code, 23-2-4 [1976]. 14 W.Va. Const., art. III, §§ 17, 16. 15 See, e.g., Eisnaugle v. Booth, 159 W. Va. 779, 226 S.E.2d 259 (1976), overruled on other grounds, syl. pt. 1, Mandolidis v. Elkins Industries, Inc., 161 W. Va. 695, 246 S.E.2d 907 (1978) (emplo......
  • Mandolidis v. Elkins Industries, Inc., Nos. 13926
    • United States
    • Supreme Court of West Virginia
    • June 27, 1978
    ...3 of Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87 (1951), and syllabus point 2 of Eisnaugle v. Booth, W.Va., 226 S.E.2d 259 (1976) are inconsistent therewith, they are hereby expressly disapproved of and 2. A motion for summary judgment may only be granted where the......
  • Cline v. Joy Mfg. Co., Nos. 15649
    • United States
    • Supreme Court of West Virginia
    • September 29, 1983
    ...and so it controls this case. See Lancaster v. State Comp. Comm'r., 125 W.Va. 190, 23 S.E.2d 601 (1942). 5 E.g., Eisnaugle v. Booth, 159 W.Va. 779, 226 S.E.2d 259 (1976); Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87 (1951); Allen v. Raleigh-Wyoming Mining Co., 117 W......
  • Bell v. Vecellio & Grogan, Inc., No. 22970
    • United States
    • Supreme Court of West Virginia
    • July 17, 1996
    ...point 3 of Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87 (1951) and syllabus point 2 of Eisnaugle v. Booth, 159 W.Va. 779, 226 S.E.2d 259 (1976) are inconsistent therewith, they are hereby expressly disapproved of and Syllabus Point 1, Mandolidis, 161 W.Va. 695, 246 ......
  • Request a trial to view additional results
9 cases
  • Deller v. Naymick, No. CC950
    • United States
    • Supreme Court of West Virginia
    • November 21, 1985
    ...with compensable claims. See W. Va. Code, 23-2-4 [1976]. 14 W.Va. Const., art. III, §§ 17, 16. 15 See, e.g., Eisnaugle v. Booth, 159 W. Va. 779, 226 S.E.2d 259 (1976), overruled on other grounds, syl. pt. 1, Mandolidis v. Elkins Industries, Inc., 161 W. Va. 695, 246 S.E.2d 907 (1978) (emplo......
  • Mandolidis v. Elkins Industries, Inc., Nos. 13926
    • United States
    • Supreme Court of West Virginia
    • June 27, 1978
    ...3 of Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87 (1951), and syllabus point 2 of Eisnaugle v. Booth, W.Va., 226 S.E.2d 259 (1976) are inconsistent therewith, they are hereby expressly disapproved of and 2. A motion for summary judgment may only be granted where the......
  • Cline v. Joy Mfg. Co., Nos. 15649
    • United States
    • Supreme Court of West Virginia
    • September 29, 1983
    ...and so it controls this case. See Lancaster v. State Comp. Comm'r., 125 W.Va. 190, 23 S.E.2d 601 (1942). 5 E.g., Eisnaugle v. Booth, 159 W.Va. 779, 226 S.E.2d 259 (1976); Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87 (1951); Allen v. Raleigh-Wyoming Mining Co., 117 W......
  • Bell v. Vecellio & Grogan, Inc., No. 22970
    • United States
    • Supreme Court of West Virginia
    • July 17, 1996
    ...point 3 of Brewer v. Appalachian Constructors, Inc., 135 W.Va. 739, 65 S.E.2d 87 (1951) and syllabus point 2 of Eisnaugle v. Booth, 159 W.Va. 779, 226 S.E.2d 259 (1976) are inconsistent therewith, they are hereby expressly disapproved of and Syllabus Point 1, Mandolidis, 161 W.Va. 695, 246 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT