Esque v. City of Huntington
Decision Date | 13 September 1927 |
Docket Number | 5894. |
Citation | 139 S.E. 469,104 W.Va. 110 |
Parties | ESQUE v. CITY OF HUNTINGTON. |
Court | West Virginia Supreme Court |
Submitted May 10, 1927.
Syllabus by the Court.
A municipal corporation is an "employer," within the meaning of the Workmen's Compensation Law (chapter 15P Code), while employing persons as a proprietary or governmental agency in any of the classes of work embraced in the act.
[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Employer.]
Error to Circuit Court, Cabell County.
Action by Robert L. Esque against the City of Huntington. Judgment for plaintiff, and defendant brings error. Affirmed.
Philip P. Gibson, of Huntington, for plaintiff in error.
James H. Strickling and Lace Marcum, both of Huntington, for defendant in error.
This is an action in which the plaintiff recovered damages for personal injuries sustained through the negligence of a fellow servant while employed by the defendant in the repair of one of its streets. The action is based upon section 26 of the Workmen's Compensation Act (chapter 15P, Code), the defendant not having been a subscriber to the compensation fund at the time of the injury. This section provides:
"All employers subject to this act, the state of West Virginia excepted, who shall not have elected to pay into the workmen's compensation fund the premiums provided by this act, or having so elected, shall be in default in the payment of same, or not having otherwise complied fully with the provisions of section twenty-four of this act, shall be liable to their employees (within the meaning of this act) for damages suffered by reason of accidental personal injuries sustained in the course of employment caused by the wrongful act, neglect or default of the employer, or any of the employer's officers, agents or employees, and also to the personal representatives of such employees where death results from such accidental personal injuries, and in any action by any such employee or personal representative thereof such defendant shall not avail himself of the following common-law defenses: The defense of the fellow-servant rule; the defense of the assumption of risk; or the defense of contributory negligence; and further shall not avail himself of any defense that the negligence in question was that of some one whose duties are prescribed by statute."
The repair of its street by the city being a governmental duty, it defends on the ground that in the exercise of such function it was not an employer within the meaning of section 9 of the act, as follows:
"All persons, firms, associations and corporations regularly employing other persons for the purpose of carrying on any form of industry or business in this state, county and municipal corporations, the state of West Virginia, and all governmental agencies or departments created by it, are employers within the meaning of this act, and subject to its provisions. All persons in the service of employers as herein defined and employed by them for the purpose of carrying on the industry, business or work in which they are engaged, and check weighmen as provided for in chapter twenty, Acts of one thousand nine hundred and eleven, are employees within the meaning of this act and subject to its provisions, provided that the act shall not apply to employers of employees in domestic or agricultural service, persons prohibited by law from being employed, traveling salesmen, to employees of any employer while employed without the State; nor shall a member of a firm of employers, or any officer of an association, or of a corporation employer, including managers, superintendents, assistant managers and assistant superintendents, any elective official of the state, county or municipal corporation be deemed an employee within the meaning of this act.
The premiums and all expenses in connection with the election of the governmental agencies and departments of the state of West Virginia shall be paid out of the state treasury out of the appropriations made for such agencies and departments, in the same manner as other disbursements are made by such agencies and departments.
Municipal corporations shall provide for the funds to pay their prescribed premiums into the fund and said premiums and premiums of state agencies and departments shall be paid into the fund in the same manner as herein provided for other employers subject to this act."
In support of its contention the defendant cites decisions from Oregon, Nebraska, and Kansas and points to the fact that, while the West Virginia act deprives an employer (within its meaning) who does not subscribe to the workmen's compensation fund of the defenses of the fellow-servant rule, the assumption of risk, and contributory negligence, it does not specifically include as employers municipal corporations while performing governmental functions.
The statutes of the states referred to are radically different from the West Virginia act. The Kansas statute expressly...
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