Mcvey v. Chesapeake & Potomac Tel. Co. Of West Va.

• Decision Date: 13 November 1928
• Docket Number: (No. 6235.)
• Citation: 145 S.E. 578
• Court: West Virginia Supreme Court
• Parties: McVEY. v. CHESAPEAKE & POTOMAC TELEPHONE CO. OF WEST VIRGINIA.

145 S.E. 578

McVEY.

v.CHESAPEAKE & POTOMAC TELEPHONE CO. OF WEST VIRGINIA.

(No. 6235.)

Supreme Court of Appeals of West Virginia.

Nov. 13, 1928.

Rehearing Denied Dee. 5, 1928.

(Syllabus by the Court.)

The posting of typewritten or printed notices by an employer in conspicuous places about his place or places of business, stating that he has elected to comply with the Workmen's Compensation Act as prescribed in section 23, chapter 15P, Code, should be liberally construed as to the conspicuousness of the places where posted, in order to effect the beneficient purposes of the act. An instruction which tells the jury, in substance, that such notices should be posted and kept posted about the employer's place of business where the employee is at work, open to view, unobstructed, and easily seen, as well as while going to and from the employment, is erroneous.

(Additional Syllabus by Editorial Staff.)

Error to Circuit Court, Cabell County.

Action by Mary McVey against the Chesapeake & Potomac Telephone Company of West Virginia. Judgment for plaintiff, and defendant brings error. Reversed, verdict, set aside, and new trial awarded.

Dozier A. Devane and J. N. Bradley, both of Washington, D. C., MacCorkle, Clark & MacCorkle, of Charleston, and Fitzpatrick, Brown & Davis and C. W. Strickling, all of Huntington, for plaintiff in error.

John Bowman and T. W. Peyton, both of Huntington, for defendant in error.

LIVELY, P. Mary McVey obtained verdict and judgment against defendant telephone company for personal injuries received while operating a switchboard as one of its employees in the plant of defendant in the city of Huntington, and defendant comes to this court, challenging her right to recovery, and prosecuting error.

The declaration sets out the duty of defendant to plaintiff, the violation of that duty, the resultant injury and damage. It charges also that defendant elected to take the benefit of the Workmen's Compensation Act (Code, c. 15P, §§ 1-55), but did not comply therewith, in that it failed to post or keep posted notices about its place of business to the effect that it had so elected, and did not otherwise notify plaintiff of its election as required by the Compensation Act. Defendant demurred, filed special plea, and then pleaded the general issue. The special plea is that plaintiff is not entitled to sue, because defendant has elected to take the benefit of the Workmen's Compensation Act, and has in all respects conformed thereto, and, at and before the injury complained of by plaintiff, had posted and maintained in conspicuous places at its place of business, and in the building where plaintiff was employed, printed notices of its election to pay for injuries under the Workmen's Compensation Act.

The errors alleged are failure to exclude, on motion, plaintiffs evidence at the conclusion of her evidence, and failure to exclude all of the evidence at the conclusion of the evidence, and direct a verdict for defendant; and errors in giving and refusing instructions.

Plaintiff was injured on May 9, 1925, at which time defendant's place of business was a three-story brick building on Tenth street, in the third floor of which plaintiff worked as telephone operator, together with many others in a large operating room 62 feet and 2 inches by 27 feet 6 inches, which building constituted what is called the "first unit." It also occupied a two-story brick building contiguous to the first unit and connected therewith by an inclosed passageway, on the second floor of which was an auxiliary operating room. The only way of reaching the operating room on the third floor of the first unit was by a stairway from the Second floor with an intermediary landing 8 feet 5 inches wide, and from this landing the stairway went up to the floor of the operating room; the distance being about 7 or 8 feet to the top of the railing around the stair wall.

Plaintiff and her coemployees in the main operating room traveled this stairway three or four times each day. On the end of a toll board on the third floor and facing the landing near where the operators got the "head gear" was placed a printed notice, according to defendant's witnesses, about 4 feet 9 inches above a person of ordinary height, and which notice was formerly on the wall but was placed on the end of the toll board when that space was taken by the toll board, and in such position where it could be best seen from the stairway landing, according to the evidence of many witnesses for defendant. A like notice was posted in the basement, in a rear hallway on the first floor in the frame room, and on a post in the center of the auxiliary operating room in the second unit, as testified to by defendant's witnesses. In all there were at least five notices, one each in the basement, frame room, rear hall first floor, business office, and at the terminal of the toll board. These notices were all alike and read as follows:

Notice to Employees

Employees are hereby notified that the undersigned has elected to pay directly to injured employees, or dependents, the Compensation and expenses provided in the West Virginia Workman's Compensation Act. This notice is posted in accordance with the provisions of the Workman's Compensation Act.

The Chesapeake & Potomac Telephone Co. of West Virginia, Employer.

January 1, 1917. (Then follow instructions in case of injury.)

The heading "Notice to Employees" was in very large letters and easily read at a distance of 15 or 20 feet. The other parts of the notice were in smaller letters, but could be read at a distance of 4 or 5 feet.

There is a sharp conflict in the evidence as to whether any of these notices were in fact ever posted. Plaintiff and seven of her witnesses were positive that no such notices were posted either on the pillar in the second unit or on the end of the toll board, and about five others testified that they had never observed any notices posted anywhere about the premises; while on the other hand defendant produced the persons who had actually posted the notices, the janitor who kept them clean, and about twenty-five of the employees who had seen and read the notices. Many of plaintiff's co-workers on the third-floor room testify that they saw and read the notice posted on the end of the toll board, and that it had always been there. It rather conclusively appears that the notice on the pillar in the second-floor room in the second unit, the auxiliary operating room, was there until a day or so before the first trial, when it was taken down to be used as evidence, and a photograph of the pillar shows the space where it was posted, clearly defined, with the screw holes in the plaster corresponding to those in the frame of the notice. The evidence vastly preponderates in favor of...