Thompson v. State Comp. Comm'r, (No. 10134)

Decision Date21 June 1949
Docket Number(No. 10134)
CourtWest Virginia Supreme Court
PartiesStanford Thompson v. State Compensation Commissioner, et al.

1. Workmen's Compensation

"Under Code, 23-4-2, as amended by Chapter 104, Acts 1937, rules and regulations adopted by an employer must be approved by the Compensation Commissioner before willful disobedience thereof can be relied upon by the employer to defeat a claim for benefits under the Compensation Law." Prince v. State Compensation Commissioner, 123 W. Va. 67, Pt. 1 Syl.

2. Workmen's Compensation

"Willful violation by an employee of a statute designed for his protection is willful misconduct under Code, 1931, 23-4-2, [as amended by Chapter 104, Acts of the Legislature, 1937,] which forbids compensation for an injury caused by such misconduct." The Carbon Fuel Company v. State Compensation Commissioner, 112 W. Va. 203, Syl.

3. Workmen's Compensation

"Acts and conduct of an employee violating a statute, so as to constitute willful misconduct, within the meaning of Code, 23-4-2, as amended by Chapter 104, Acts 1937, must be done with notice of the statute and in willful disobedience thereof." Prince v. State Compensation Commissioner, 123 W. Va. 67, Pt. 2 Syl.

4. Workmen's Compensation

"An employee in a coal mine is charged with actual notice of a particular provision or section of the statutes of this State, relating to mines and mining, when a copy of such statutes is delivered to him in person by the employer." Barta v. State Compensation Commissioner, 128 W. Va. 448, Pt. 1 Syl.

5. Workmen's Compensation

A mining employee, charged with the duty of loading and unloading a supply train, hauling supplies from one place to another in a coal mine, is a person "necessary to operate the trip or car" within the meaning of Code, 22-2-62, inhibiting employees in a coal mine, except those "necessary to operate the trip or car" from riding on "any loaded car or on the outside of any car, or * * * [getting] on or off a car while in motion."

6. Workmen's Compensation

As the compensation fund was created for the protection of both employers and employees, it should be liberally administered so as to effectuate the purpose of the Workmen's Compensation Act.

7. Workmen's Compensation

The Workmen's Compensation Act, Code, Chapter 23, as amended, insures employees, within the provisions of the Act, against the negligence of their employers and against the operation of the doctrines of contributory negligence and assumption of risk, and the fellow servant rule.

8. Negligence

Wilful misconduct is not limited to the violation of statutory law or safety rules: it may consist of engaging deliberately, consciously, or advertently, or with reckless disregard of consequences, in practices known to be dangerous.

9. Workmen's Compensation

"An act of an employee, which may contravene instructions of his superiors, or of the state mining authorities, or be contrary to generally known and accepted practices of similar employees, but which appears to have been done impulsively or spontaneously in the face of a sudden and unforeseen emer- gency, does not amount to 'wilful misconduct, ' within the meaning of Code, 23-4-2, so as to bar compensation to a dependent for the death of such employee resulting from such act." Steve- ly v. State Compensation Commissioner, 125 W. Va. 308, Pt. 2 Syl.

10. Workmen's Compensation

Under the Workmen's Compensation Act, Code, Chapter 23, as amended, neither negligence, even if gross, nor the exercise of bad judgment, constitutes misconduct barring compensation.

Appeal from Workmen's Compensation Appeal Board.

Proceedings under the Workmen's Compensation Act by Stanford Thompson opposed by the Red Jacket Coal Corporation, employer. From an order of the Workmen's Compensation Appeal Board, which reversed an order of the State Compensation Commissioner, refusing the claimant compensation and holding the claimant was entitled to compensation benefits the employer appeals.

Affirmed.

Haymond, President and Fox, Judge, dissenting.

Lant R. Slaven, E. E. Thompson, Jr., for appellant. Hillis Townsend, W. J. Thompson, for appellees.

Riley, Judge:

Red Jacket Coal Corporation prosecutes this appeal from an order of the workmen's compensation appeal board, dated December 11, 1948, which reversed an order of the state compensation commissioner refusing claimant, Stanford Thompson, compensation, and held that claimant was entitled to compensation benefits.

Claimant Thompson, who had been an employee of Red Jacket Coal Corporation for more than four years prior to May 9, 1947, the date claimant was injured as the result of being rolled between the top of an empty mine car and a cross-timber or "cross-collar". The mine car was part of a train, composed of a motor and three cars, which was transporting* timbers. Ordinarily, claimant was employed in the coal corporation's mine as a timberman, but at the time he was injured, he was engaged in loading timbers in one or three mine cars forming the supply trip, which were to be hauled about five hundred feet to the place where claimant was to set them. After claimant had completed the work of loading, he signalled the brakeman to pull out, and the brakeman relayed the signal to the motorman, who put the trip in motion. In order to avoid walking the five hundred feet, and evidently to expedite the work of setting the timbers, claimant, according to his own testimony, "started to climb over in the car" while it was in motion. Before he was able to get into the car, he was rolled between the top of the car and a cross-timber or "cross-collar" in the roof.

On the basis of this evidence the employer asserts that Thompson's act in attempting to climb into the moving car immediately after he had signalled the brakeman to start the trip, and while the car was moving, was such wilful misconduct as would bar compensation. It is contended that claimant's said act was: (1) A wilful violation of Code, 22-2-62, which reads: "No person, except the persons necessary to operate the trip or car, shall ride on any loaded car or on the outside of any car, or get on or off a car while in motion"; (2) a wilful violation of paragraph four of Rule No. 1, promulgated by the employer and conspicuously posted on the mine property, but not approved by the state compensation commissioner, as required by Code, 23-4-2, which reads: "All employees are forbidden to ride upon any incline, cars, engines, locomotives, conveyors or any other contrivance except that specifically provided and authorized by the Corporation to be used for transporting employees"; and (3) that, independent of company rules and Code, 22-2-62, claimant's said act constituted wilful misconduct.

As shown by a receipt signed by claimant, he was given and received a copy of the Mining Laws, which embraced Code, 22-2-62, more than four years prior to the date of his injury, when he was first employed by the Red Jacket Coal Corporation. About twice a week, and perhaps on other occasions, the coal corporation gave, through its foremen, general safety instructions and, though the record does not specifically show that claimant was present at the time any of these instructions were given, there is evidence to the effect that it would have been practically impossible for an employee, who had been employed by the coal corporation for several years, as plaintiff had been, not to have heard at least some of the oral safety instructions and warnings. Claimant was never personally warned not to get on a moving car, nor was claimant, or any other employee, so far as this record discloses, ever observed by the foremen of the coal corporation in the act of riding on loaded cars, or boarding moving cars.

At the time claimant was injured, the train was backing with the light of the locomotive pointed in a direction opposite the bar on which claimant was injured, and whether the motorman and brakeman actually saw claimant attempting to get on the moving car does not clearly appear. Though the statute, Code, 22-2-61, provides that motormen and trip riders "shall not permit any person or persons to ride on locomotives or loaded cars unless granted permission by the mine foreman", such provision of the statute is not involved here, for this record does not disclose that claimant at the time he was injured was attempting to board a loaded car.

The pertinent provision of the statute barring compensation, Code, 23-4-2, as amended by Chapter 104, Acts of the Legislature, 1937, reads: "Notwithstanding anything hereinbefore or hereinafter contained, no employee or dependent of any employee shall be entitled to receive any sum from the workmen's compensation fund, * * * on account of any personal injury to or death of any employee caused by a self-inflicted injury, wilful misconduct, wilful disobedience to such rules and regulations as may be adopted by the employer and approved by the commissioner, and which rules and regulations have been and are kept posted in conspicuous places in and about the work, * * *."

As the safety rule in the instant case was not approved by the state compensation commissioner, as required by the foregoing statute, the rule and the general admonitions and instructions given to the coal corporation's employees concerning it, cannot be relied upon by the employer to defeat Thompson's claim for benefits. In Prince v. State Compensation Commissioner, 123 W. Va. 67, pt. 1 syl., 13 S. E. 2d 396, this Court held: "Under Code, 23-4-2, as amended by Chapter 104, Acts 1937, rules and regulations adopted by an employer must be approved by the Compensation Commissioner before willful disobedience thereof can be relied upon by the employer to defeat a claim for benefits under the Compensation Law." Forsyth v. State Compensation Commissioner, 125 W. Va. 78, 23 S. E. 2d 66.

As claimant was injured while attempting to get on and into a moving car, he was guilty of a violation of...

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