186 S.E. 612 | W. Va. | 1936
This is an action under section 2, article 4, chapter 23, Code 1931, providing that an employee sustaining injury "from the deliberate intention of his employer to produce such injury," shall be entitled to compensation under the statute, and damages from the employer to the extent of his injury in excess of the amount received or receivable under the Compensation Act.
Plaintiff, Anthony Ross Allen, was injured in the course and as the result of his employment, as servant of defendant, Raleigh-Wyoming Mining Company, on the night of June 7, 1934, while riding the front end of a trip of empty mine cars in the coal mine of defendant, in Raleigh County, by coming in contact with a wooden trapdoor hung across the track. He had been working in the mine about two months. Previous to the day of the injury, a canvass, suspended at the point of the accident, served as a brattice. On that day, the canvass was removed and the trapdoor installed. The cars were being pushed in the mine by an electric motor on which the section foreman, Garland Whitt, was riding. Whitt knew of the installation of the trapdoor and testified that he had advised plaintiff of the fact before the accident. *633 He also testified that as the trip of cars approached the door, he directed the motorman to slow down, and that the motor and cars were moving very slowly at the time of the collision. But he does not say whether he had, before the accident, informed the motorman of the door or directed him to stop the trip before reaching the point of its location. Plaintiff denied that he knew of the door or that Whitt had given him any warning. Judgment was entered on a verdict of $1600.00 against defendant in favor of plaintiff, and defendant prosecutes error.
The question for decision is whether the evidence is sufficient to prove that the plaintiff's injury was the result of "the deliberate intention" of defendant "to produce such injury," within the meaning of the statute. Our original compensation statute, enacted in 1913, substantially followed, in many respects, the provisions of the first compensation act of the State of Washington, passed in 1911, and the provision now in question, was adopted almost in the exact language of the Washington Act, the only difference being the use of the word "employee" in our statute for "workman" in the Washington Act. In 1913, the State of Oregon also adopted as a part of its first compensation act, the provision in question, and the Supreme Court of that state judicially determined its meaning in Jenkins v. Carmen Mfg. Co., (1916)
In 1922, the Supreme Court of Washington adopted the definition of "deliberate intent" laid down in theJenkins case and ruled that an employee injured in the course of his employment by the explosion of a boiler, maintained by his employer, could not recover damages under the statute in the absence of evidence tending to show a specific deliberate intent on the part of the latter to produce the injury.Delthony v. Standard Furniture Co.,
This court has twice considered cases brought under our statute. In Collins v. Contracting Company,
As the evidence, in our opinion, is not sufficient to establish a deliberate or specific intent on the part of any agent of the employer to cause the injury complained of, the judgment of the circuit court is reversed, the verdict set aside and a new trial awarded.
Judgment reversed; verdict set aside; new trial awarded.