Thompson v. State Compensation Commissioner

54 S.E.2d 13, 133 W. Va. 95, 1949 W. Va. LEXIS 7

• Court: West Virginia Supreme Court
• Decided: June 21, 1949
• Docket: 10134
• Status: Published

Opinions

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 Code, 22-2-62, unless he comes within the category of the persons excepted from the operation of the statute, that is persons “necessary to operate the trip or car.” Clearly, Code, 22-2-62, was designed for the protection of persons, including claimant, who are employed in mining in this State, and this Court has held that the wilful violation by an employee of such statute is wilful misconduct under Code, 23-4-2, as amended by Chapter 104, Acts of the Legislature, 1937, barring compensation. The Carbon Fuel Company v. State Compensation Commissioner, 112 W. Va. 203, pt. 1 syl., 164 S. E. 27; Chiericozzi v. State Compensation Commissioner, 124 W. Va. 213, pt. 1 syl., 19 S. E. 2d 590. As a corollary to this rule, it was held in Prince v. State Compensation Commissioner, supra, pt. 2 syl., that: “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.” Whether claimant knew of the pertinent statute is of no moment. When he was employed by the Red Jacket Coal Corporation, he was given and received a copy of the Mining Laws, as shown by his signed receipt, filed with the record herein. He is, therefore, charged with actual notice of the provisions of Code, 22-2-62. In Barta v. State Compensation Commissioner, 128 W. Va. 448, pt. 1 syl., 37 S. E. 2d 81, this Court held:' “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.”

As heretofore indicated, there is no evidence in this record that the employer ever expressly permitted claimant to get on or off moving cars; nor is there any evidence that the employer acquiesced in such practice, and, as this claimant was in the act of getting on a car while in motion, he is barred from recovery, unless at the time and place he was injured, he was a person “necessary to operate the trip or car.”

The instant claimant, though generally employed as a timberman, was, at the time he was injured, employed by the coal corporation as a timber loader on the train upon which he was injured, or, to be more specific, he was employed in loading and unloading timbers which were to be carried from one place to another in the mine. He had, in fact, loaded the timbers on one or more of the cars, for the purpose of having them taken to a place in the mine about five hundred feet distant, where it was his duty to unload them, and thereafter, acting as a timber-man, to set the timbers.

Belcher, the brakeman on the train, testified in answer to the question: “How was Thompson to get from where he loaded the timbers at approximately five hundred feet to where the timbers were to be unloaded”, said: “Either walk or get in the car and ride; sometimes they got in the cars and sometimes they walked”; and he answered affirmatively the question: “Did I understand you to say that men rode in the cars in a trip where there were also timber cars?” Stafford, the motorman, testified that men were accustomed to ride on trips where timbers were being transported: “They didn’t ride in where the timbers were, they rode behind them after they were loaded.” So evidently it was the practice, according to these witnesses, who were charged under Code, 22-2-61, with keeping all persons from riding “on locomotives or loaded cars unless granted permission by the mine foreman”, to permit employees charged with the duty of loading material, including timbers, to ride either empty cars or behind the timbers when the cars were loaded, as the material was being carried from outside the mine to a place within it, or from one place to another within the mine. This testimony bears directly on the question whether Thompson, after he had loaded the timbers and was required to go five hundred feet to set the same, was a person “necessary to operate the trip or car.” If at the time he was injured, he was such a person, his action in getting on the car while it was moving was not violative of Code, 22-2-62.

In the instant case the distance of transportation was approximately five hundred feet. If Thompson had been required to walk that distance, the unloading and setting of the timbers would have been delayed for some time. In determining this all-embracing question whether claimant was necessary to operate the trip or car within the purview of the statute, we must consider the character of his employment. He was, in fact, a person employed in the loading, transporting and unloading of timbers on the supply train at the time he was injured. If, as is true in some mines, the distance from where the timbers had been loaded to the place where they were to be set, had been several miles, for instance from the mouth of the mine to a place deep within the mine, and the same employee, as in Thompson’s case, was charged with the duty of both loading and unloading, and was required to walk, there would be a delay of about an hour. Truly such delay would not work to the expeditious transportation of supplies in our modern mines in which coal is being mined on a large scale, which, of itself, requires prompt delivery of supplies. At the meeting of a statewide safety council, held in Charleston under the sponsorship of the West Virginia Safety & Health Council, in April, 1949, the general superintendent of a large coal mining operation in northern West Virginia said: “The consumption of supplies is much greater in today’s mine and, for efficient usage, must be delivered where needed as rapidly as possible. This calls for fast unhindered movements of the supply crew as they travel from section to section.” Claimant, in our opinion, in view of the realities presented by this case, was an integral part of the supply crew of the train upon which he was injured; and, in interpreting, as this Court should do, Code, 22-2-62, liberally and from a practical viewpoint, claimant was necessary to the operation of the trip. As the compensation fund was created for the protection of both employers and employees, this Court time and again has said that the Workmen’s Compensation Act should be liberally construed and applied, so as to effectuate the purpose of the statute. Caldwell v. State Compensation Commissioner, 106 W. Va. 14, 18, 144 S. E. 568; Sole v. Kindelberger, 91 W. Va. 603, 114 S. E. 151. The Act protects the employer against the risk of being mulcted in damages in actions at law, and against the payment and expenses of litigation and counsel fees. On the other hand, it provides injured employees with medical attention and hospitalization and 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. Stevely v. State Compensation Commissioner, 125 W. Va. 308, 24 S. E. 2d 95; McEwan v. State Compensation Commissioner, 123 W. Va. 310, 314, 14 S. E. 2d 914; Long Flame Coal Company v. State Commissioner, 111 W. Va. 409, 413, 163 S. E. 16. It is on this basis that this Court has invoked the liberality rule in the interpretation and application of the workmen’s compensation statute, and, by the same token, it should not pay lip service to the rule, and then in deciding cases, by technically interpreting and applying the statute, ignore the rule. We therefore hold that claimant is not barred on the ground that he wilfully violated Code, 22-2-62.

But is claimant barred from compensation on the ground that he was guilty of wilful misconduct, independent of company or statutory safety rules, as was the case in Red Jacket Consolidated Coal and Coke Company v. State Compensation Commissioner, 111 W. Va. 425, 162 S. E. 313? “* * * wilful misconduct is not limited to the violation of statutory law. It may consist of the deliberate doing, or the refusal to do, anything commanded or inhibited by any competent authority.” Stevely v. State Compensation Commissioner, supra, page 311. In Prince v. State Compensation Commissioner, supra, page 70, this Court, in relying upon decisions in other jurisdictions said: “In Glass v. Sullivan, 170 Tenn. 230, 94 S. W. (2d) 381, it is said that willful misconduct means more than negligence and carries the idea of deliberation and intentional wrongdoing. ‘Willful misconduct includes all conscious or intentional violations of definite law or rules of conduct, as distinguished from inadvertent, unconscious, or involuntary violations.’ Aetna Life Ins. Co. v. Carroll, 169 Ga. 333, 150 S. E. 208.” This definition was adopted verbatim in the dissenting opinion in the Prince case.

We cannot, of course, say that Thompson’s action in attempting to board the car just as it was moving out was unconscious, nor can we say that it was involuntary. It was, however, inadvertent, and in the face of a sudden emergency created by the movement of the train immediately after claimant gave the signal to the brakeman and before he had time to get into the empty car. As the train started to move out, he then and there was confronted with the necessity of deciding whether to attempt to get into the empty car or delay the setting of timbers while he walked the five hundred feet to the place where the timbers were to be unloaded and set. In Stevely v. State Compensation Commissioner, supra, pt. 2 syl., this Court held: “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 unforseen emergency, 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.” Perhaps it may be said that Thompson was negligent in creating the emergency in that he gave the signal to the brakeman before he had an opportunity to get into the car; but if he was negligent, even if grossly so, his negligence in this regard under the Stevely, McEwan and Long Flame Coal Company cases, heretofore cited, will not bar compensation. It may even be that in giving the signal prematurely, or in attempting to board the moving car, claimant used poor judgment, but bad judgment of itself does not constitute statutory wilful misconduct. Prince v. State Compensation Commissioner, supra, page 70. In boarding the moving train claimant in this case did so in furtherance of his duty. He was not, as in the cases of The Carbon Fuel Company v. State Compensation Commissioner, supra; Chiericozzi v. State Compensation Commissioner, supra; and Barta v. State Compensation Commissioner, supra, cited by counsel for the employer, merely serving his own accommodation and convenience. The claimants in all three of those cases were not acting to expedite the performance of their duties: they had no right to board and ride a loaded mine vehicle. In The Carbon Fuel Company case, claimant rode a loaded trip because “he was in a hurry to get to the store”, and, unlike the instant claimant, he had been warned by his employer’s mine foreman on a prior occasion, when he was found violating Code, 22-2-62. In the Chiericozzi case, claimant there, rather than wait for a regular man trip, which for some reason was late, caught a loaded train. In the Barta case the employee, while on his way out of the mine, met his death either by falling from a loaded mine car, on which he had no right to travel, or was run over by a car while he was on the mine track.

We are of the opinion, in the circumstances of this case, that claimant is not barred from compensation benefits on the ground that he was guilty of wilful misconduct, and, his injuries being compensable in all other respects, the workmen’s compensation appeal board, in our opinion, was justified in reversing the order of the state compensation commissioner and in awarding claimant compensation benefits.

The order of the workmen’s compensation appeal board is affirmed.

Affirmed.