Harris v. State Workmen's Compensation Com'r

• Decision Date: 24 September 1974
• Docket Number: No. 13462,13462
• Citation: 208 S.E.2d 291,158 W.Va. 66
• Court: West Virginia Supreme Court
• Parties: Richard HARRIS v. STATE WORKMEN'S COMPENSATION COMMISSIONER and S. M. Kisner & Sons.

Page 291

208 S.E.2d 291

158 W.Va. 66

Richard HARRIS v. STATE WORKMEN'S COMPENSATION COMMISSIONER and S. M. Kisner & Sons.

No. 13462.

Supreme Court of Appeals of West Virginia.

Sept. 24, 1974.

Syllabus by the Court

1. 'The Workmen's Compensation Appeal Board is a fact finding body, and its rulings on questions of fact will not be reversed or set aside by this Court unless clearly wrong.' Syllabus point 3, Sowder v. State Workmen's Compensation Commissioner, W.Va., 189 S.E.2d 674 (1972).

2. 'An injury incurred by a workman, in the course of his travel to his place of work and not on the premises of the employer, does not give right to participation in such (Workmen's Compensation) fund, unless the place of injury was brought within the scope of employment by an express or implied requirement in the contract of employment, of its use by the servant in going to and returning from his work.' Syllabus point 2, De Constantin v. Public Service Commission, 75 W.Va. 32, 83 S.E. 88 (1914).

C. R. Nutter, Clarksburg, for appellant.

Johnson & Johnson, Charles G. Johnson, Clarksburg, for S. M. Kisner & Sons.

Otis Mann, Jr., Charleston, for Workmen's Comp. Com'r.

HADEN, Justice:

Claimant appeals from an order of the Workmen's Compensation Appeal Board which affirmed two previous rulings of the State Workmen's Compensation Commissioner that an injury sustained by the claimant was not suffered in the course of and as a result of his employment and therefore was not compensable from proceeds of the Workmen's Compensation Fund.

Richard Harris was an hourly worker employed by S. M. Kisner & Sons Company as a roofer. Pursuant to directions from his employer, the claimant reported to work on the morning of November 21, 1972, in Fairmont, West Virginia, at a job site. Due to poor weather conditions the crew was unable to commence work on the job in Fairmont that morning. Rather than lose the entire work day to the inclement weather, the employer advised his assembled employees that if they wished they could go to Clarksburg to another job site at the FOURCO Glass Plant, and there engage in some sheet metal work on the glass plant building. Before departing for the Clarksburg job site, the claimant informed his supervisor that he did not have with him the necessary tools to perform his job. Accordingly, he requested permission to return home to pick up his tools before proceeding to the Clarksburg job site. The supervisor and the managing partner of the employer informed the claimant that if he desired to work on that day he should pick up his tools.

While proceeding from the Fairmont job site to the claimant's home in his own automobile, the claimant sustained serious personal injuries resulting from an automobile accident involving a third person which occurred on the Saltwell Road, a public highway located in Harrison County, West Virginia.

According to the employer's work rules, all hourly employees were required as a condition of employment, to have with them their personal work tools at every job site, and were also required to furnish their own transportation to and from job sites. Additionally, such employees began earning hourly pay once any job had been commenced but the employer did not pay his employees for time spent at a job site in anticipation of beginning a particular job. On the other hand, if one job at a particular geographical site was completed within a work day, and time remained for the commencement of work at a second remote site, the employer compensated its workers for travel to the second work site.

On the day of claimant's injury the evidence demonstrated that no hourly workers were paid for the time consumed before commencement of the job at the second work site in Clarksburg, West Virginia, with the exception of the claimant. Sometime after his injury, Harris sent his son to the employer's office to clock-in one and a half hours time on his timecard for the day in question, although he had not commenced work at either the Fairmont or Clarksburg job site. According to testimony from the employer, through inadvertence, the claimant received pay for this one and a half hour period although no other employees received pay for that time period.

The claimant maintains on this appeal that the automobile accident resulting in his injuries occurred while he was on a special mission or errand for his employer, and that, accordingly, the injury is compensable as occurring in the course of and resulting from his employment.

The employer and a co-worker, also an hourly employee, testified, however, that the claimant and his co-workers were not required to commence work at the Clarksburg job site by order of the employer. In further explanation, the employer testified that the amount of work at the Clarksburg job required the presence of only six workers while there were eight employees assembled at the Fairmont job site for the work there. However, in order to provide as much work time as possible for his hourly employees, the employer told all assembled that if they desired to work the Clarksburg job they should proceed from the Fairmont site to Clarksburg and begin work. On the other hand, the claimant testified that he regarded the suggestion of the employer to proceed to the Clarksburg job site as an order which he, as an employee, could not disregard.

The Commissioner and the Workmen's Compensation Appeal Board resolved this factual dispute in favor of the employer by finding, as stated in the Appeal Board's opinion that 'the employer advised his employees that if they wished', they could work at the other location. Thus, while the Appeal Board did not specifically comment upon the claimant's assertion that the effect of the employer's offer was, in fact, an order or command, nor did it mention the 'special errand rule', the clear import of the Board's conclusion, based upon the finding noted above, is to the effect that the claimant was not required to return home for his tools to proceed to the Clarksburg job site.

For reasons which will be set forth, we affirm the ruling of...