Miller v. United Fuel Gas Co.

Decision Date01 March 1921
Docket NumberNo. 3661.,3661.
Citation88 W.Va. 82
CourtWest Virginia Supreme Court
PartiesOtha A. Miller v. United Fuel Gas Company.

1. Master and Servant Compensation Act Applies Unconditionally Only to Employees in Intrastate Commerce. With respect to an employer engaged in both interstate and intrastate commerce, section 52 of the Workmen's Compensation Act (chapter 15P, Code of 1918) applies the provisions of the act unconditionally only to those of his employees whose work is wholly intrastate and clearly separable and distinguishable from work in interstate commerce. (p. 87).

2. Same Compensation Act Must be Accepted by Employer and Employees Engaged in Interstate and Intrastate Commerce.

But where the work done within the state is so closely related to the interstate business of the employer that it cannot clearly be distinguished and separated from it, the act is made to apply only upon the condition that the employer and such employees voluntarily accept its provisions by filing with the commissioner written acceptances approved by him. (p. 87).

3. Same Employer Engaged in Interstate and Intrastate Business Not Deprived of Common-Law Defenses in Absence of Acceptance of Compensation Act.

Where the employer and his employees have not so elected to submit to the act, the former is not deprived of his common law defenses. (p. 87).

4. Commerce Master and Servant Inspection of Interstate Pipe Line for Gas Held "Interstate Commerce," Requiring Mutual Acceptance of Workmen's Compensation Act. An employee of an interstate carrier of gas, inspecting within the state an integral part of its pipe line transportation system, through which gas continuously passes destined for indiscriminate interstate and intrastate use, in search of a leak known to exist, is engaged in work so closely related to interstate commerce as to be part of it; and, in the absence of a mutual election to submit to the Workmen's Compensation Act, the employer is not deprived of his common law defenses at the suit of the employee for injuries sustained by him while engaged in such inspection and repair work. (p. 87).

5. Master and Servant Employment in Interstate Commerce Held Question for Court.

Where in such case there is no conflict in the evidence respecting the character of defendant's business and the nature of plaintiff's employment, the question whether the latter was or was not so closely identified with interstate commerce as to be part of it, is for the court, not the jury, to determine. (P. 89).

6. Trial Instruction Including Element of Permanency of Injury and Probability of Future Loss Not Sustained by Evidence Erroneous.

In the absence of evidence reasonably tending to establish permanent injury of the plaintiff, or the probability of future pecuniary loss resulting therefrom, an instruction including such elements among those proper to be considered by the jury in determining its verdict, is erroneous. (p. 89).

7. Master and Servant Employer Failing to Accept Compensation Act Not Liable for Injuries Not Caused by His Negligence.

Though an employer within the terms of the Workmen's Compensation Act fails to avail himself of the benefit of the statute, he is not liable for an injury sustained by an employee in the course of his employment, in the absence of negligence on the part of the former which is the proximate cause of the injury. (p. 90).

8. New Trial Verdict Based on Conjecture Should be Set Aside.

In an action for tort, the plaintiff bears the burden of proof, and a verdict for him, based upon evidence which affords a mere conjecture that liability exists, and leaves the minds of the jurors in equipoise and reasonable doubt, should be set aside upon proper motion. The evidence must generate an actual, rational belief in the existence of the disputed fact. (p. 91).

9. Master and Servant Reasonable Care to Furnish Reasonably Safe Place for Work Sufficient.

An employer has performed his duty to provide a reasonably safe place within or upon which his employees may work, when he has exercised reasonable care and diligence in that regard. (p. 91).

Error to Circuit Court, Roane County.

Proceedings by Otha A. Miller against the United Fuel Gas Company. Judgment for plaintiff, and defendant brings error.

Reversed and remanded.

R. G. Altizer, C. C. Douthitt and Pendelton, Mathews & Bell, for plaintiff in error.

Thos. P. Ryan and Chas. E. Hogg, for defendant in error. Lynch, Judge:

The purpose of this writ is to review a judgment for plaintiff entered upon a verdict in an action to recover damages for personal injuries resulting from the bursting of defendant's gas pipe line on July 29, 1916. At the time of the accident plaintiff and a fellow employee were engaged in search- ing for a leak which had developed in the line, to which duty they had been assigned by defendant's superintendent.

The line in question was a gathering or feed line, four inches in diameter, designed to collect and confine gas from numerous wells in the vicinity and transport it in succession to another 4-inch line, thence through an 8 or 10 inch line to a compressor station, and by an 18-inch main trunk line to Ravenswood on the Ohio River, where the gas is metered, sold and delivered to the Ohio Fuel Supply Company, by whom it is transported across the river and sold and distributed to patrons of the latter in Ohio. A minor portion of the gas so gathered and transported is sold en route to various consumers in this state, but the remainder is carried in the line without material break across the state line into Ohio, thereby becoming a commodity of interstate commerce. The two portions, however, that sold within the state and that without, are commingled in the one transportation system and no attempt is made to separate them. We have hitherto had occasion to refer to the combined interstate and intrastate character of this portion of defendant's business, and therefore it is unnecessary to enter into further discussion of it. Roberts v. United Fuel Gas Co., 84 W. Va. 368, 99 S. E. 549; United Fuel Gas Co. v. Hallanan, 87 W. Va. 396, 105 S. E. 506, 516-517.

Plaintiff and W. B. Hughes had ascertained the approximate location of the leak and were engaged in digging along the side of the line, which was buried about eighteen inches beneath the surface of the ground, in order to determine the exact source of the leakage and repair the line to stop the flow. Hughes was digging with a pick and plaintiff was removing the loosened dirt with a shovel, when, from some unaccountable and unexplained cause, the pipe burst, throwing both of them a considerable distance, filling their eyes with dirt, mud and gravel, and dazing them by the force of the explosion. A physician hastily summoned removed the dirt and other substance from their eyes as best he could and rendered other necessary assistance. Plaintiff was removed to his home where his eyes were kept bandaged for four days. After two weeks he returned to his work and remained with the company for more than a year, usually engaged in performing the same character of work as before the injury. Since then he has been and now is employed by the Atlantic Refining Company as foreman in charge of its line repair work at an increased daily compensation.

The declaration and its three counts charge defendant with negligence in a three-fold aspect: (1) In failing to keep its pipe line in a reasonably safe condition and state of repair, and in permitting too great a volume of gas to remain in the pipe at high pressure; (2) in failing to shut off the gas in the line before directing plaintiff to locate the leak; (3) in failing to lay a line sufficiently strong to earry with reasonable safety the volume of gas transported through it. The declaration also averred the failure of the defendant to comply with the requirements of the Workmen's Compensation Act by paying into the compensation fund the premiums required by law.

In addition to its demurrer to the declaration and plea of not guilty, defendant tendered and the court permitted it to file three special pleas denying that it was subject to the Workmen's Compensation Act of this state and setting up the common law defenses of contributory negligence, assumption of risk, and fellow servancy.

Plaintiff's instructions Nos. 1 and 2, given, and defendant's instruction No. 2, refused, raised the question whether the failure of the latter to elect to contribute to the Workmen's Compensation Fund operated to deny it the protection of the common law defenses invoked by the special pleas. In effect plaintiff's two instructions informed the jury that if they believed from the evidence that at the time of the injury the defendant was engaged in both interstate and intrastate commerce, and that plaintiff was engaged in work affecting the latter only, and that such work was clearly separable and distinguishable from the defendant's interstate business, then as to the work in which plaintiff was engaged defendant was subject to the Workmen's Compensation Act, and not having availed itself of the provisions thereof, could not rely upon the common law defenses.

With respect to an employer engaged in both interstate and intrastate commerce, we have held that section 52 of the Workmen's Compensation Act, as it appears in Barnes' 1916 Code, chapter 15P, applies the provisions of the act unconditionally only to those of his employees whose work is wholly intrastate and clearly separable and distinguishable from interstate commerce. Suttle v. Hope Natural Gas Co., 82 W. Va. 729; Roberts v. United Fuel Gas Co., 84 W. Va 368, 99 S. E. 549. But where the work done within the state is so closely related to interstate commerce that it cannot clearly be distinguished and separated from it, the act is made to apply only conditionally, that is, when the employer and employees voluntarily accept its provisions by filing with the commissioner written acceptances approved by...

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