Montgomery v. State Comp. Comm'r

• Decision Date: 05 February 1935
• Docket Number: (No. 8075)
• Citation: Montgomery v. State Comp. Comm'r, 116 W.Va. 44 (W. Va. 1935)
• Court: West Virginia Supreme Court
• Parties: Clarence P. Montgomery v. State Compensation Commissioner

116 W.Va. 44

Clarence P. Montgomery

v. State CompensationCommissioner

(No. 8075)

Supreme Court of Appeals of West Virginia.

Submitted January 9, 1935.

Decided February 5, 1935.

1. Master and Servant

Disability due to shock, exposure and exhaustion directly attributable to claimant's having become lost in a coal mine for a period of seven days is the result of a "personal injury" within the meaning of the Compensation Act.

2. Master and Servant

Injury sustained by a coal loader as a result of becoming lost in a coal mine while returning from his work to the surface along one of the entries of the mine used as a travelway, being a happening within the contemplation of the contract of employment, occurs in the course of employment and results therefrom within the meaning of the Compensation Act.

Appeal from Order of State Compensation Commissioner.

Proceeding under Workmen's Compensation Act by Clarence P. Montgomery, claimant, opposed by the Rachel Gas Coal Company, employer. From an order of the State Compensation Commissioner denying claimant compensation, claimant appeals.

Reversed.

Wm. P. Lehman and Harry E. Watkins, for appellant.

Kenna, Judge:

On October 4, 1933, C. P. Montgomery, age 54, left his working place as a coal loader in the mines of Rachel Gas Coal Company at about one-thirty in the afternoon. Between that hour and two-thirty or three o'clock in the afternoon lie was seen inside the mine by several fellow-workmen, to some of whom he talked. The testimony of these men does not contribute materially to a solution of the question presented here, and the utmost weight that can be given it is to say that it throws some doubt upon the question of Montgomery being in a normal state of mind at the time that they saw him. It appears that at the time that Montgomery left his working place he intended to go to a supply shanty inside the mine where he hoped to see the mine foreman, and from him to get directions as to where he should work on the following day. He reached this shanty and found no one there. He thereupon started to the bottom of the shaft along an entry on which the shanty was. He had trouble with his light and was making his way along the entry in the dark, being guided by the track that ran to the bottom of the shaft. As he was going along in this manner, he heard the approach of an incoming motor trip and stepped back into what he thought was a "manhole" or offset in the wall of the entry intended to permit persons walking along the entry to step off the track and out of the way of the motor. The trip, a train of some length, passed, and, in attempting to get back into the entry and resume his way to the bottom of the shaft. Montgomery became confused. What he had supposed to be a "manhole" turned out to be a "cross-cut" between the air shaft and the entry. In his confusion, Montgomery became turned around and instead of finding his way back into the entry, went in the wrong direction and got into the air passage. He seems to have totally lost his sense of direction with the result that he was lost in the mine for a period of seven days, or until October 11, 1933, when he was found by a searching party. In the meantime, he had been without food, had wandered through the mine seeking his way out, had waded through water, some of it probably up to his neck, and had suffered from shock and exhaustion. There seems to be no question but that for several weeks after his experience, he was unable to return to work as a consequence of it, and there is some proof tending to show that even now he is not in condition to resume his employment. However, it is likely that the question of degree of disability was not fully developed before the commissioner nor considered by him for the reason that compensation was denied because the disability complained of was found by the commissioner to be not due to an injury received in the course of and resulting from the claimant's employment. It is from this order of the commissioner that claimant appeals, and the sole question for decision is whether, admitting that claimant received some degree of disability, temporary or permanent, from his experience, that disability originated in an injury received in the course of and resulting from claimant's employment.

We are not referred to, nor have we been able to find, any decided cases that are of direct assistance even by way of analogy in reaching a conclusion on the question thus presented. We must determine, so far as our investigation of the question shows as a matter of first impression, whether there is sufficient causal connection between claimant's employment and the condition in which he found himself after his experience in the mine to render that condition compensable.

It is settled law in West Virginia that under the Workmen's Compensation Act disease, whether...