Smith v. United Fuel Gas Co

• Decision Date: 25 April 1922
• Docket Number: (No. 4398.)
• Citation: 112 S.E. 205
• Court: West Virginia Supreme Court
• Parties: SMITH. v. UNITED FUEL GAS CO.

112 S.E. 205

SMITH.

v.UNITED FUEL GAS CO.

(No. 4398.)

Supreme Court of Appeals of West Virginia.

April 25, 1922.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Interstate Business.]

Error to Circuit Court, Roane County.

Action by Bud C. Smith against the United Fuel Gas Company for damages for personal injuries. Judgment for the plaintiff, and the defendant brings error. Affirmed.

Pendleton & Hedges and Harper & Baker, all of Spencer, for plaintiff in error.

R. G. Altizer, of Charleston, and S. P. Bell, of Spencer, for defendant in error.

POFFENBARGER, P. The judgment brought up by this writ of error set aside a verdict for $5,935 in favor of the plaintiff, for damages resulting from the loss of an eye, alleged to have been occasioned by the negligence of the defendant. Omission of the latter to provide the former, its servant, a safe place in which to perform the work he was doing and safe and suitable tools and appliances with which to perform it, and to warn him of the dangers incident to his employment, a claim of inexperience on his part having been asserted, is the ground of negligence alleged.

Deeming itself not to have been within the scope of the Workmen's Compensation Act (Code Supp. 1918, e. 15P [sees. 657-710]), in respect of the transaction resulting in the injury complained of, the defendant, in addition to its denial of the charge of negligence, relies upon the common-law defenses of assumption of risk, contributory negligence, and infliction of the injury by the negligence of fellow servants. In its admission of evidence and grants of instructions, the court, regarding this position of the defendant as having been well taken, recognized and allowed all of said defenses; but, for some reason, the motion for a new trial was sustained.

The injury occured in repair of maintenance work done on one of the defendant's 8 gas engines used at its Spencer Compressor Station in Roane county, provided and maintained for the collection of natural gas from neighboring gas fields and enforcement of its flow to Sugar Grove in the state of Ohio, by way of Sandyville and Ravenswood in Jackson county, W. Va. At Ravenswood on the Ohio river, it is measured and sold to the Ohio Fuel Supply Company, but continues its flow through an 18-inch gas main, under the force applied by the compressor station at Spencer. The power plant of that station consists of 8 gas engines, 3 of 960 h. p. each, 3 of 480 h. p. each, and 2 of 300 h. p. each, operated in batteries of about 4, running alternately. While some of them are running, the others are cleaned, repaired, and adjusted. Working on one of them, while it was idle the plaintiff suffered the injury complained of.

Defendant's prosecution of interstate as well as intrastate business, by means of its plant, and general employment of the engines at its compressor, in the course thereof, seem to be admitted. At any rate, these assertions are not expressly denied, and they seem to be well founded in law. United Fuel Gas Co. v. Hallanan, 87 W. Va. 396, 105 S. E. 506; Barnett v. Coal & Coke Ry. Co., 81 W. Va. 251, 94 S. E. 150; Findley v. Coal & Coke Ry. Co., 76 W. Va. 747, 87 S. E. 198; Suttle v. Hope Natural Gas Co., 82 W. Va. 729, 97 S. E. 429. It is insisted, however, that, as the engine on which the plaintiff was at work, when hurt, was not actually employed in the running of the compressor, at the time, it was not then used in interstate business, and that, therefore, as to it, the defendant must be deemed to have been engaged in intrastate business only. Whether this position is sustained by McKee v. Ohio Valley Electric Co., 78 W. Va. 131, 88 S. E. 616, and Watts v. Ohio Valley Electric Co., 78 W. Va. 144, 88 S. E. 659, cases arising under the federal Employers' Liability Act, it is unnecessary to inquire, for that act has no application. Only railroad employers and employees are within its operation. Barnes' Federal Code 1919, § 8070 (U. S. Comp. St. § 8658). However, as the classification of the employees of an employer engaged in both kinds of business, contemplated by the Workmen's Compensation Act, is made with reference to the character of the business in which its employees are engaged, they may be applicable, under circumstances justifying their application. They hold that an employee engaged in service pertaining exclusively to intrastate business or on a structure or other instrumentality not actually used in interstate business, though designed and intended to be so used, is; not employed in interstate commerce. In the Watts Case, the traffic handled and the cars run by the employee were clearly intrastate. In the other, the bridge on which the injured employee worked was incomplete and had not been used in any kind of traffic. The same observation may be truthfully made, respecting Roberts v. United Fuel Gas Co., 84 W. Va. 368, 99 S. E. 549, in which the Workmen's Compensation Act was successfully invoked. The employee was hurt while excavating a ditch for a pipe line, intended for use in interstate transportation but not yet actually so used. In Suttle v. Hope Natural Gas Co., 82 W. Va. 729, 97 S. E. 429, production of oil and gas and the drilling and cleaning of wells were held to be intrastate business and separable from the company's interstate business. To bring an employer engaged in both kinds of business, within the act, as to the intrastate part, that part must have two qualities. It must be purely intrastate and also clearly separablefrom the interstate portion. Though intrastate, it must be clearly separable and distinct from the other. If intrastate and so closely related to the interstate that it cannot be clearly distinguished and separated from it, the act does not apply in the absence of a voluntary submission to it, assented to by the compensation commissioner. Miller v. United Fuel Gas Co., 88 W. Va. 82, 106 S. E. 419; Barnett v. Coal & Coke Ry. Co., 81 W. Va. 251, 94 S. E. 150.

The engine on which the plaintiff was working, when hurt, was a part of the compressor plant by which the gas was driven across the state line into Ohio. It was not a mere movable instrument. On the contrary it was a very large permanent machine being about 60 feet long and at least 5 feet in diameter. Its use in interstate business, when running, is admitted. It was bought and installed for such use, and is never diverted to any other. Its occasional idleness is merely incidental to its operation and its use in both kinds of business, at the same time. Repair of machinery is as much an incident of its operation as is its depreciation by use. In the large sense of the terms, its cleaning, repairing, and adjustment are parts of its use. Such use, however, might not suffice in itself, but it is enlarged and made conclusive by the fact that this engine, while undergoing treatment, still remained a part of the permanent plant which, as a whole, was in constant use, and the cleaning, repair, and adjustment amounted to work on the plant. Hence, the work in which the injury occurred was manifestly a part of the interstate business of the defendant, and the trial court properly allowed interposition of the common-law defenses invoked in the trial, assumption of risk, contributory negligence, and imputation of the negligence, if any, to fellow servants.

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