Red Jacket Consol. Coal v. State Comp. Comm'r., (No. 7155)
| Decision Date | 19 January 1932 |
| Docket Number | (No. 7155) |
| Citation | 111 W.Va. 425 |
| Court | West Virginia Supreme Court |
| Parties | Red Jacket Consolidated Coal and Coke Company, inc. v. State Compensation Commissioner et al. |
1. Master and Servant
Where an employee in the course of his employment engages in willful misconduct which results in fatal injury to him, his dependents are not entitled to compensation under the Workmen's Compensation Law. Code 1931, 23-4-2.
2. Master and Servant
Act of coal loader in using "short fuses," a condemned practice in "doby mining," held "willful misconduct" precluding compensation to dependents for death (Code 1931, 23-4-2). (For other definitions of "Willful Misconduct," see Words and Phrases.)
Appeal from Circuit Court.
Proceeding under the Workmen's Compensation Act for compensation for the death of Jose Pillado Garcia, an employee of the Red Jacket Consolidated Coal & Coke Company, Incorporated. The State Compensation Commissioner awarded compensation to the dependents, and the employer appeals.
Reversed and dismissed.
Goodykoontz & Slaven, for appellant.
Howard B. Lee, Attorney General, and R. Dennis Steed, Assistant Attorney General, for Compensation Com'r.
Carlos Berguido, Jr., and England & Ritchie, for dependents of Jose Pillado Garcia.
Jose Pillado Garcia was killed in Mingo County in a mine of the Red Jacket Consolidated Coal & Coke Company April 29, 1930, while engaged in his duties as a coal loader for said company. Compensation was awarded his dependents and the company appeals.
In support of its challenge of this award the appellant takes the position that at the time of his fatal injury Garcia was guilty of violation of the mining laws of the state and of the rules of the company, and that his manner of procedure was willful misconduct. All of which elements arose because, it is said, at the time of his death, which was caused by explosion, Garcia was undertaking to set off more than one shot at a time and was using "short fuses."
Garcia was working alone in a room in the mine where the face of the coal was about eight feet wide. After shooting down and removing the coal which had been last undercut by the undercutting machine, there remained on the bottom of the mine, underneath the cut that had been made by the machine, a layer of coal from one to six inches in thickness. At the time of the fatal injury Garcia was engaged in loosening this bottom in preparation for its removal. Following accepted mining practice he was using an explosive, monobel, which is a powder composition used extensively in coal mining.
In removing bottom, commonly called "doby mining," holes are dug in the bottom with a pick and the explosive placed therein with a fuse extending therefrom. Some packing, coal or other material, is placed over the explosive and the same is fired with the fuse. When Garcia's dead body was found, some three or four hoars after the last shot had been heard in the room where he was working, it was discovered that his hands had been blown off and that his face and head were terribly mutilated. Three shots had been fired in the section of bottom where he was working, and a fourth shot, the one on the extreme left, had not been exploded. The fuse of the unexploded shot had not been lighted. The fuse in this shot was about twelve inches long. A piece of fuse about eleven inches long was found in the pocket of the dead man, and two pieces of burnt fuse about eight inches long were found on the floor.
It is, of course, speculative as to the exact manner in which Garcia met his death. A miner in a neighboring room heard two shots almost together, a light explosion followed by a heavey one. A third explosion is unaccounted for unless it was simultaneous with one or the other of the two shots heard by the neighboring miner. It cannot be said that the three shots were all fired by Garcia at the time of his accident (one may have been put off earlier), nor that the two which were heard by the other miner had been voluntarily fired (nearly simultaneously) by Garcia. He may have intentionally fired the first one, and the second have occurred through accident. Compensation could not therefore be denied on the ground that he was firing more than one shot at the time, even if the statute inhibiting that practice were construed as applying to "doby mining."
Garcia was in the habit of using very short fuses in his "doby mining." About six months before his...
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