Wm. Shott v. the Hudson Coal Co. , 106 Pa. Super. 304 ( 1932 )

Argued March 7, 1932. This case is very similar in its facts to the case of Gima v. Hudson Coal Co., 106 Pa. Super. 288 just decided. The findings of the referee were not as complete, definite or detailed as in the Gima case, and, except for formal matters, consisted only of the following:

"Findings of Fact. ......

"3. On the 20th day of June, 1930, William Shott was returning to the face after waiting five minutes and had only counted four holes fired for a five-hole charge, and was caught by the explosion of the fifth hole. .....

"5. As a result of the explosion, claimant was shot about the face, eyes, arms, right hand, and has sustained the loss of his left eye, and has some facial disfigurement. ....."

"Conclusions of law. ......

"2. That the claimant, William Shott, at the time of the injury, was violating the Anthracite Mine Law of the State of Pennsylvania (Act of June 2, 1891), and was not acting in accordance with the special rules issued by the E.I. duPont deNemours Company of Pennsylvania, governing the use of powder in Anthracite Coal Mines of Pennsylvania, and issued in accordance with Rule 29, Article 12, of the Anthracite Mine Law.

"3. That claimant is not entitled to an award of compensation."

In his appeal to the Workmen's Compensation Board the claimant assigned for error only the referee's third finding of fact and second and third conclusions of law, averring that the claimant's conduct at the time in question did not constitute a violation of the Anthracite Mine Law. The Board in its opinion sustaining the referee made more complete and definite findings, as follows: "The claimant, a miner, drilled five holes which he filled with monabel, a high explosive manufactured by the duPont Company. He put a fuse in each one of the five holes, each fuse cut to a different length so that the same would go off in order, making five separate reports. The claimant set off the fuses electrically and heard but four reports. He said he thought probably two of the shots had exploded together; and after hearing the last report he waited about five minutes and then went up to the face where the shots had exploded. When he got there the fifth shot exploded and the claimant was seriously injured. Rule 29 of the Anthracite Mine Law of 1891, P.L. 176, provides that when high explosives are used in any mine the manner of firing shall be in accordance with special rules as furnished by the manufacturer of the explosive; and it was shown that these special rules were furnished by the duPont Company; that they were approved as required; that they were posted on the bulletin board; and that they provided that in case of a misfire at least twelve hours or more should be allowed before returning to the misfire. Violation of these rules by the terms of the Act of Assembly is a misdemeanor: Labuck v. Mill Creek Coal Company,292 Pa. 284. The proof is very persuasive that the claimant violated this rule. Consequently, at the time of the accident he was engaged in an illegal act and was not in the course of his employment. The claimant argues that he was mistaken, that he thought the five shots had exploded and that under such conditions he could not be held guilty of a crime. He knew, however, that the fuses were all of different length, and that he should have heard five distinct reports. When he did not hear five distinct reports it was his duty not to return to the face for at least twelve hours. The Act would be entirely nullified if the claimant's contention should prevail, because it is very unlikely that an employe would deliberately walk into a place of danger. The rule was promulgated to prevent the very mistake which the claimant in this case made. We are compelled to the conclusion that the referee did not err in disallowing compensation. The findings of fact, conclusions of law, and disallowance of the referee are affirmed and the appeal is dismissed."

On the appeal to the common pleas that court reversed the referee and the Board and entered judgment in favor of the claimant on exactly the same grounds set forth at length in the Gima case. The questions, therefore, before us in this case are practically identical with those which were passed upon in the Gima case and it would serve no useful purpose further to discuss them.

For the reasons set forth in the opinion in that case, the first, second, third, fourth, fifth and sixth assignments of error are sustained, the judgment of the lower court is reversed and the order of the Workmen's Compensation Board, affirming disallowance of compensation by the referee, is reinstated and affirmed.