Shapaka v. State Compensation Commissioner

• Court: West Virginia Supreme Court
• Citation: Shapaka v. State Compensation Commissioner, 146 W.Va. 319, 119 S.E.2d 821 (W. Va. 1961)
• Decision Date: 16 May 1961
• Docket Number: No. 12096,12096
• Parties: Anthony G. SHAPAKA STATE COMPENSATION COMMISSIONER and Wheeling Steel Corporation.

Page 821

119 S.E.2d 821

146 W.Va. 319

Anthony G. SHAPAKA

STATE COMPENSATION COMMISSIONER and Wheeling Steel Corporation.

No. 12096.

Supreme Court of Appeals of West Virginia.

Submitted April 11, 1961.

Decided May 16, 1961.

Syllabus by the Court.

1. If the conduct of an employee which results in his injury constitutes a departure from or an abandonment of his employment the injury is not compensable; but if such conduct constitutes a mere deviation which is slight and not substantial it does not remove the employee from the course of his employment and does not render his injury not compensable.

2. The conduct of an employee resulting in his fall and accompanying injury which occurred while he was engaged in the performance of a momentary or impulsive act does not constitute a deliberate and extensive excursion from his employment.

3. 'Acts of ministration by a servant unto himself, such as quenching his thirst, relieving his hunger, protecting himself from excessive cold and numerous others, readily conceivable, performance of which, while at work, are reasonably necessary to his health and comfort, are incidents of his employment and acts of service therein, within the meaning of the Workmen's Compensation Act, though, in a sense, they are personal to himself and only remotely and indirectly conducive to the object of the employment; and an accidental injury sustained in the performance of such an act is compensable under said statute, as one incurred in the course of the employment and resulting therefrom.' Point 1, syllabus, Archibald v. Workmen's Compensation Commissioner, 7 W.Va. 448 [87 S.E. 791].

4. The momentary and impulsive act of an employee, while on his way from his place of work to a water cooler in a nearby section of the plant to obtain a drink of water and his consequent fall and injury, did not remove him from his employment and his injury was received in the course of and resulted from his employment.

5. Mere negligence or carelessness of an employee, causing his death or injury, does not preclude his right to compensation under the Workmen's Compensation Law of this State.

Schmidt, Laas & Schrader, Thomas B. Miller, Wheeling, for appellant.

James M. Sprouse, Charleston, for appellee.

HAYMOND, President.

The claimant, Anthony G. Shapaka, sustained personal injuries on the night of May 8, 1960, at the plant of the Wheeling Steel Corporation at Beach Bottom, West Virginia, where he was employed in connection with the operation of a crushing machine, while walking from his working place to a water cooler located in another section of the plant at a distance of about fifty feet from his post of employment for the purpose of obtaining a drink of water. In going toward the cooler he used a passageway or aisle of the plant, on the floor of which was a quantity of resilient wire mesh approximately sixteen feet in length, seven and a half feet in width and about one foot in height. Though there were other aisles or passageways available for use in going to the water cooler the claimant and other employees customarily used this passageway which at times contained similar quantities of wire mesh. After he had walked upon and over the mesh for a distance of about sixteen feet and had reached the end of the mesh he paused momentarily, jumped upward about two and a half feet and, in attempting to make a complete turn in the air in an upright position, fell on the floor of the passageway. As he descended he was facing the mesh, one of his feet was on the mesh and the other was on the floor; and in the fall that resulted he sustained the injuries to his back and his ankle for which he seeks compensation.

By order entered September 22, 1960, the state compensation commissioner held that the injuries of the claimant were received in the course of and resulted from his employment and were compensable. On January 18, 1961, the workmen's compensation appeal board affirmed the order of the commissioner. From that order this Court granted this appeal on February 20, 1961, upon the petition of the employer.

The employer contends that at the time of his injury the claimant was engaged in horseplay and as a result his injury was not received in the course of his employment and is not compensable.

The controlling question here involved has not been determined by any prior decision of this Court and may be regarded as a case of first impression in this jurisdiction. The question, however, has been considered by courts in other jurisdictions and the decisions on that point are varying in result and are in apparent conflict.

Whether an employee who engaged in conduct which may be characterized as horseplay sustains a compensable injury depends upon its relation to his employment. If the conduct of an employee which results in his injury constitutes a departure from or an abandonment of his employment the injury is not compensable; but if such conduct constitutes a mre deviation which is slight and not substantial it does not remove the employee from the course of his employment and does not render his injury not compensable. 99 C.J.S., Workmen's Compensation, Section 222.

In 58 Am.Jur., Workmen's Compensation, Section 211, the text contains these statements: 'It has been stated that an accident arises out of the employment if it ensues from a risk reasonably incident to the employment, and if it is in some sense due to the employment. A test applied in some cases is that an injury arises out of the employment if the employment is one of the contributing causes without which the accident which actually happened would not have happened.'

In Section 212 of the same title and volume there is this language: '* * *, it may be stated as a very general proposition that an injury occurs 'in the course of' the employment when it takes place within the period of employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto, or, as sometimes stated, where he is engaged in the furtherance of the employer's business. Conversely, a workman not engaged in performing the particular duties for which he was employed, or in something incidental thereto, is not in the course of his employment, even though he may be in the generla sphere of it.'

In 99 C.J.S., Workmen's Compensation, Section 222, these statements appear: 'The legal effect of a deviation depends on the circumstances, the nature of the work and the terms of the employment being the most important circumstances. Many decisions turn on the extent of the deviation; a deviation the terms of the employment being the most does not remove the employee from the course of his employment. A distinction is sometimes made between a momentary or impulsive act, and a deliberate and extensive excursion from the employment. The test of a deviation is not so much a matter of the time consumed and the distance traveled in departing from the most direct route, but of whether the employer's or the employee's purpose is served. If the employee would have suffered the same injury had he not incidentally turned aside from his work, his turning aside is immaterial. There is no fixed rule to determine whether an act of an employee constitutes a departure from, or an abandonment of, his employment.'

The conduct of the claimant which resulted in his fall and accompanying injury occurred while he was engaged in the performance of a momentary or impulsive act did not constitute a deliberate and extensive excursion from his employment. If instead of jumping upward and endeavoring to make a complete turn while in an upright position he had merely tripped or stumbled and had fallen and in that manner sustained his injury while on his way to the cooler to obtain a drink of water it could not reasonably be asserted that his act in falling in that manner constituted a departure from his employment. Unquestionably the conduct of the claimant in going from his working place to the water cooler in another nearby section of the plant to get a drink of water occurred within the scope of his employment. Booker v. State Compensation Commissioner, 113 W.Va. 657, 169 S.E. 483; Archibald v. Workmen's Compensation Commissioner, 77 W.Va. 448, 87 S.E. 791, L.R.A.1916D, 1013. In the opinion in the Booker case this Court used and approved this quotation of point 1 of the syllabus in the Archibald case: 'Acts of ministration by a servant unto himself, such as quenching his thrist, relieving his hunger, protecting himself from excessive cold and numerous others, readily conceivable, performance of which, while at work, are reasonably necessary to his health and comfort, are incidents of his employment and acts of service therein, within the meaning of the Workmen's Compensation Act, though, in a sense, they are personal to himself and only remotely and indirectly conducive to the object of the employment; and an accidental injury sustained in the performance of such an act is compensable under...