Prince v. Comp. Comr. , 123 W. Va. 67 ( 1941 )

The State Compensation Commissioner awarded death benefits to the widow of W. K. Prince. An appeal was taken to the State Compensation Appeal Board by the employer, and the finding of the Commissioner was affirmed, from which action of the Board the employer appealed.

Prince, a coal cutting machine operator for the C. H. Mead Coal Company, a subscriber to the Workmen's Compensation Fund, was killed by a fall of slate occurring on October 3, 1939. The employer had certain rules regarding the setting of props and timber, which rules had been amended a short time before Prince was killed. It does not appear that the amendment had been approved by the State Compensation Commissioner. The amendment follows:

"Machine men will set safety post on right as soon as machine cuts beyond that point. Also as many more as necessary to make the place safe."

Prince went to the place where he was killed in company with his helper, A.D. Lilly. Before the cutting machine was unloaded, the top was examined. Lilly says he told Prince that the roof was "loose or heavy," and that Prince said, "Maybe we can cut it." The machine was unloaded, and after having cut about six feet Lilly says he noticed that the slate was giving down from the main roof, and small particles were falling. Lilly also says that he shut down the machine and began to watch a piece of slate, and made some other comments, to which Prince replied that he had been there fifteen years and that this helper could not tell him anything about the top. He then told Lilly to start the machine, and had cut about two feet more, when the slate fell. It is further shown that under the rules and practice at this mine, machine operators determined the safety or danger in working conditions, in the absence of section foremen.

The employer invokes the provisions of Code, 23-4-2, as amended by Chapter 104, Acts of the Legislature, 1937, to defeat this claim for death benefits, and contends that decedent was guilty of willful misconduct in that Prince did not set safety posts as required by the amended rule hereinabove quoted, and that he violated the provisions of Code, 22-2-32, 59 and 60, wherein certain safety measures are required.

The Workmen's Compensation Law was enacted for salutary purposes. It is proper that employers should be called upon, in accordance with its provisions and meaning, to pay indemnity for accidents involving the loss of life or injury to persons in their employ, as employers are protected from burdensome litigation by its provisions. The law must be given a liberal construction to accomplish the purpose and intent.McVey v. C. P. Telephone Co. 103 W. Va. 519, 138 S.E. 97.

As stated, an examination of the record fails to show that the amended rule of the employer had been approved by the Compensation Commissioner. Such approval is obviously necessary before a violation thereof, without more, can be successfully invoked to defeat a claim for compensation. Code, 23-4-2. Sections 32, 59 and 60, article 2, chapter 22, Code, refer to the examination and timbering of the roof. Willful violation by an employee of a statute designed for his protection is willful misconduct under Code, 23-4-2. Carbon Fuel Co. v. Comp. Com'r.,112 W. Va. 203, 164 S.E. 27. However, before such a violation can be asserted as a bar to benefits under the Compensation Law, it must be shown that the employee had actual notice thereof and disregarded the same. Carbon Fuel Co. v. Comp.Com'r., supra; King v. Empire Collieries Co., 148 Va. 585,139 S.E. 478, 58 L.R.A. 193. No such showing appears in this record. Furthermore, the statute under consideration in CarbonFuel Co. v. Comp. Com'r., supra, prohibited the employee from doing a specific act, while sections 32, 59 and 60, referred to above, leave room for the exercise of judgment on the part of the employee.

It is argued that the conduct of Prince just before his death amounted to willful misconduct in that Prince must have known, as an intelligent and experienced miner, that he was engaging in a dangerous practice; that he knew that the practice was disapproved by his helper; and because of the admonition given to him by the mine foreman and company officials urging him to set posts as required by the rules of the company. The case ofRed Jacket Consolidated Coal Co. v. Compensation Commissioner, 111 W. Va. 425, 162 S.E. 665, is cited in support of this argument. In that case, it appears that the employee was killed by using "short fuses" and by undertaking to set off more than one shot at a time. He had been threatened by the mine foreman with discharge because he was using short fuses, and had also been fined by a local "safety club" for the same offense. No such facts appear herein. The situation in which Prince found himself called for the exercise of his judgment as to the danger or safety of the roof, and his judgment was different from that of his helper, Lilly. Furthermore, it is clear that the judgment of Prince was bad, and his action negligent, but does the mere exercise of bad judgment and negligent conduct pursuant thereto constitute willful misconduct? We answer this question in the negative. Bradley v.Compensation Commissioner, 110 W. Va. 89, 157 S.E. 42.

"Willful misconduct" has been variously defined in opinions dealing with facts similar to those established in this case. 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. See generally, Tyree v. Commonwealth, 164 Va. 218,179 S.E. 297; Sloss-Sheffield Steel Iron Co. v. Greer,216 Ala. 267, 113 So. 271.

The Compensation Commissioner and the Workmen's Compensation Appeal Board are fact-finding agencies. The order of the board affirming the finding of the Commissioner will not be reversed on appeal, unless it is clearly wrong.

In accordance with the foregoing principles, we affirm the finding of the Workmen's Compensation Appeal Board.

Affirmed.