Vento v. State Comp. Comm'r

• Decision Date: 21 October 1947
• Docket Number: (No. 9980),(No. 9981)
• Parties: Lucille Vento, Widow, etc. v. State Compensation Commissioner, et al.
• Court: West Virginia Supreme Court

130 W.Va. 577

Lucille Vento, Widow, etc.

v.State Compensation Commissioner, et al.

(No. 9980)

(No. 9981)

Supreme Court of Appeals of West Virginia.

Submitted September 3, 1947.

Decided October 21, 1947.

1. Workmen's Compensation Appeal Board

In order to reverse a finding of fact by the Workmen's Compensation Appeal Board it must appear from the proof upon which the board acted that the finding in question was plainly wrong.

2. Workmen's Compensation Appeal Board

Where the State Compensation Commissioner has refused compensation in a death case it is error for the Workmen's Compensation Appeal Board to reverse his finding and also award compensation to the widow of the decedent, the question of whether there are beneficiaries not having been considered by the commissioner.

Appeal from Workmen's Compensation Appeal Board.

Proceeding under the Workmen's Compensation Act by Lucille Vento, widow, etc., claimant, to recover compensation for death of Daniel P. Vento, employee, opposed by the New River Company, employer. From order of the Workmen's Compensation Appeal Board reversing a finding by Compensation Commissioner and awarding compensation to claimant, the employer and Compensation Commissioner appeal.

Affirmed in part and reversed in part.

Mahan, White, Higgins & Laird, for appellant, New River Company.

E. B. Pennybacker, State Compensation Commissioner, and John F. Bronson, for appellant, State Compensation Commissioner.

Thompson & Vickers, for appellee.

Kenna, Judge:

Lucille Vento, widow of Daniel P. Vento, claimed compensation as a dependent of the deceased who lost his life March 16, 1945, while employed by the New River Company and while upon the tipple of its Collins operation at Glen Jean. The claimant protested a finding by the State Compensation Commissioner that her decedent had committed suicide and, after hearing, appealed the same finding to the Workmen's Compensation Appeal Board, which reversed the commissioner and entered its order awarding compensation to the claimant. The employer was granted this appeal and it now contends that the clear weight of the evidence establishes death by suicide or precludes a finding that it occurred in the course of and resulted from the deceased's employment, and further, that the findings of the commissioner are entitled to unusual weight since death occurred from the operation of an unusual machine which, together with its surroundings, the inspector of the commissioner had an opportunity to examine, whereas the decision of the appeal board is based upon the paper record only. The compensation commissioner, whose petition for an appeal was also granted, contends that there was no finding by him as to beneficiaries because his order refused compensation before that question was reached and hence it was not before the board on appeal.

Daniel P. Vento was thirty-nine years old, of average height, and weighed about one hundred and ninety pounds. He married Lucille Moses, widow-claimant, in 1932, when he was working for the New River Company as a coal inspector, a position that he occupied at the time of his death, probably having been promoted from a local inspector, whose duties are confined to a single operation, to that of general inspector with the duty of inspecting the work of the local inspectors at several operations in a certain area. He carried $5,000.00 life insurance with double indemnity. He and his wife owned their home at Scarbro, from which he went to Louisville, Kentucky, in February, 1945, to undergo a treatment for excessive drinking to which he had been addicted for from three to four years. Mrs. Vento closed their home in Scarbro and lived with her mother in Oak Hill. Vento was discharged from a Louisville hospital and returned to the home of Mrs. Vento's mother in Oak Hill on the seventh day of March, 1945. On Saturday, the tenth day of March the Ventos went to spend the weekend with Mrs. Vento's brother at his home in Winona where they remained until Monday evening. Vento had been drinking heavily so that Mrs. Vento went to her mother's home at Oak Hill and he went to the home of his brother, Walter Vento, at Glen Jean. Vento had "passed out" and had to be carried into his brother's home. Dan's wife is supposed to have told Mrs. Walter Vento on Tuesday, the thirteenth, at Oak Hill that she had "completely finished" with him and that he was welcome to a division of their property. This was told Dan on Thursday. He is supposed to have told this same woman on Tuesday that he wished he could kill himself. At Scarbro on Christmas, 1944, after dinner in walking with Walter he said if he could get hold of a gun he would end it all. He was then drinking heavily. Walter said that Dan's wife told him not to let him get hold of a gun. Dan's wife went to Fayetteville and employed an attorney to bring a divorce proceeding on the ground of "habitual drunkenness." Process issued in spite of no bill having been filed and was served on the fifteenth of March. He drank two quarts of brandy on both Tuesday and Wednesday of the week in which he met his death, staying in his room in his brother's home, eating very little, getting up occasionally and coming down stairs, but going back to bed at once. On Thursday of that week he drank nothing but a relatively small amount of beer and on Friday morning, the sixteenth, got up early when his brother Walter went to work, told him that he was going to work that day, and shook hands with him upon parting. On that morning Dan went to work at around ten or tenthirty and began the day at the Collins tipple of the New River Company at Glen Jean, where they were loading coal from a strip mining operation some distance from the tipple. He made two telephone calls from the foreman's office near the tipple to the company's general office at Mount Hope in an effort to get in contact with the company's general manager, a Mr. McCauley, or with a Mr. Hunt. He told Mrs. Stover, who answered the telephone, that he had been "on another" and created the impression that he wished to find out whether he had been fired or was still on the pay roll. He called twice and did not get in touch with either Hunt or McCauley. Mrs. Stover testified that his talk was decidedly queer and that he did not seem to gather the sense of her replies or to be certain of what he himself had already inquired concerning. Upon going to work he talked with R. E. Core, then in charge of the coal dump near the tail sprocket, or bottom, of the coal conveyer belt in which he met his death, and told him that the coal running through the dump was dirty and that he intended to see that a Mr. Anderson in charge of strip mine production was reprimanded. Core said that in his judgment the coal was wet instead of dirty. Vento then asked him if it would be safe for him to ride on one of the trucks returning to the stripping operation and was told that of course it was safe. This he did, and was gone approximately one hour and on his return was seen entering the back of the tipple. This was the last occasion upon which he was seen alive. His body was discovered by his brother Walter Vento who was in charge of coal inspection at the Collins tipple.

The description of the tipple where Dan Vento met his death is not clearly stated by some of the witnesses. However, as a part of the employer's testimony there is a diagram drawn to scale showing a cross-section of the tipple, including the machines which, as coal carriers and shaker screens, operated thereon. Since the accuracy of this diagram is not questioned it, rather than uncertain testimony, will be used. No transverse diagram appears.

The end of the tipple toward the hill where coal is received, in this opinion, is called its "back" and its other end where coal after having gone over the shaker screens is loaded by gravity into railroad cars beneath those screens is called the "front." About twenty feet back of the tipple the diagram shows what is called a "dump bin," being the place where the trucks bringing strip mined coal unloaded in order that it may be placed on an endless belt conveyer and taken up to the second floor of the tipple from where the sorting and loading process over the shaker screens is done by gravity. This endless belt conveyer is under the coal chute of the dump bin from where it carries the coal between thirty-eight and forty feet upward at an angle of about thirty-five degrees to the feeder of the shaker screens on the second floor of the tipple. The belt on which the coal is placed is thirty-seven inches wide with chains on both sides into which the teeth of sprockets fit at both the lower and upper end, there being two sprockets under the dump bin and two on the second floor of the tipple. Both the head sprockets and the tail sprockets are mounted on shafts. The sprockets at the tipple end of the conveyer are twenty-seven inches in diameter with teeth that protrude an additional four inches. There is no detailed description of the lower or tail sprockets, but by comparison appearing from the...