Venilli v. State Comp. Comm'r

• Decision Date: 10 September 1929
• Docket Number: (No. 6583)
• Citation: 107 W.Va. 544
• Court: West Virginia Supreme Court
• Parties: Jimmie Venilli v. State Compensation Commissioner

107 W.Va. 544

Jimmie Venilli

v.State Compensation Commissioner

(No. 6583)

Supreme Court of Appeals of West Virginia.

Submitted September 4, 1929.

Decided September 10, 1929.

Master and Servant Compensation Commissioner's Fact Finding Will Not Ordinarily be Set Aside if Supported by Substantial Evidence; Evidence Held to Sustain Refusal of Compensation Award on Ground Injured Miner Was Using Fuse of Insufficient Length in Drill Hole (Code, c. 15H, § 36c(l).

The finding of the State Compensation Commissioner upon

conflicting evidence will not ordinarily be set aside if there is

substantial evidence to support it.

(Workman's Compensation Acts, C. J. § 114, p. 115, n, 37; § 127,]). 123, n. 41.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of Syllabi.)

Appeal from Ruling of State Compensation Commissioner.

Proceeding under the Workmen's Compensation Law by Jimmie Venilli against the State Compensation Commissioner for injuries sustained while in the employ of the West Virginia Coal & Coke Company. Compensation was refused, and claimant appeals.

Affirmed.

G. C. Belknap, for appellant,

Howard, B. Lee, Attorney General, and B. Dennis Steed, Assistant Attorney General, for respondent.

Hatcher, Judge:

Petitioner Venilli, a miner of fourteen years experience, was injured by the explosion of powder which he was tamping into a drill hole. He was employed by the West Virginia Coal & Coke Company, which subscribes to the Workmen's Compensation Fund. Compensation was refused Venilli on the ground that at the time of the accident he was using a fuse of less length than the drill hole, which practice is forbidden by section 36E-1, Chapter 15H, Code.

There were no eye witnesses to the accident. Filed on behalf of Venilli are: (1) depositions of three of his former employers who state that they had never known of his using short fuse and had always considered him a good and safe miner; (2) his own deposition that he was tamping a stick of monabel, with the cap two or three inches inside the stick, into a three foot hole; that no wedging occurred; that the fuse was three feet long; that he had not lit the fuse when it exploded; and that he had never used short fuse.

On behalf of the Commissioner are filed: (1) a deposition of Venilli taken prior to the one above in which he admits having used short fuse several times previous to the accident in another of the company's mines; (2) depositions of three experienced coal loaders who state that they were sixty feet from Venilli when the accident occurred; that they heard Venilli tamping and then heard the explosion; and that they had seen Venilli cut and use short fuse on several previous occasions. Each was asked the hypothetical question: "If a coal loader was shoving a stick of powder or monabel with the cap imbedded in the stick of powder three inches in a hole...