Bradshaw v. Aronovitch

• Decision Date: 28 April 1938
• Citation: 196 S.E. 684
• Court: Virginia Supreme Court
• Parties: BRADSHAW et al. v. ARONOVITCH.

196 S.E. 684

BRADSHAW et al.

v.ARONOVITCH.

Supreme Court of Appeals of Virginia.

April 28, 1938.

Appeal from Industrial Commission.

Proceeding under the Workmen's Compensation Act by Hallie Bradshaw and another, claimants, for the death of Leroy Bradshaw; son and brother of the claimants, respectively, opposed by David Aronovitch, trading as, etc., employer. From an order of the Industrial Commission denying compensation, claimants appeal.

Reversed and remanded.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Paul H. Coleman, of Lynchburg, for appellants.

Wiltshire & Rives, of Richmond, for appellees.

EGGLESTON, Justice.

Leroy Bradshaw, a colored boy, aged 19 years, was killed while in the employ of David Aronovitch. Hallie Bradshaw, the mother, and Ruth Bradshaw, the sister, of the deceased filed a claim before the Industrial Commission for an award of compensation on the ground of their alleged partial dependency upon him. The commission held, in denying compensation, that the accident did not arise out of and in the course of the employment of the deceased. The claimants have appealed.

We are asked to dismiss the appeal because, it is said, the appeal bond was not given within the time required by law. It is argued that since section 61 of the Workmen's Compensation Act, Michie's Code 1936, § 1887(61), provides, among other things, that a petition for appeal from an award of the Industrial Commission "shall be presented to the supreme court of appeals, or one of its judges if the court be not in session, within thirty days from the date of such award, or within thirty days after receipt of notice to be sent by registered mail of such award, " the appeal bond required by Code, § 6351, as amended by Acts 1934, c. 132, p. 173, in appeals from the Industrial Commission, must be given within such 30 days, excluding the time which this court or one of its judges has under advisement such petition for appeal.

Appellants reply that section 61 of the Workmen's Compensation Act, Michie's Code, 1936, § 1887(61), requires that "Appeals shall lie from such award to the supreme court of appeals in the manner as provided by law for appeals in equity cases from circuit and corporation courts, " which means that the appeal bond may be given within 6 months, Code, § 6355, as amended by Acts 1922, c. 174, p. 368 and 1926, c. 10, p. 19, of the date of the award or receipt of the notice thereof, which was done in this case.

While appellee points to no express statutory provision requiring the bond to be given within the 30-day period, he argues that in prescribing that appeals from the Industrial Commission must be taken within such period, the Legislature has evidenced the intent that such appeals must be taken and perfected far more speedily than in law and in equity cases, and that such manifest legislative intent will be thwarted if the appellants are allowed to postpone the perfecting of their appeal beyond the 30-day period.

In order to carry into effect the legislative intent that appeals from the Industrial Commission be taken and perfected quickly, unquestionably there should have been some statutory requirement that the appeal bond be given within a shorter period of time than is allowed in law and in equity cases. The General Assembly of 1938 has realized this and by an appropriate amendment to Code, § 6355 (as theretofore amended), has expressly provided that such bond be given within sixty days from the date of the award or receipt of notice thereof, excluding the time during which the petition for appeal is pending before this court or one of its judges. Acts 1938, p. 135.

But in the absence of such express provision applicable to the present case, we think that the appellants here were entitled to give the appeal bond within the 6-month period fixed by Code, § 6355, as amended by Acts 1922, c. 174, p. 368, and 1926, c. 10, p. 19.

Consequently the motion to dismiss is overruled.

We turn next to the merits of the case. On the day of the accident Leroy Bradshaw was riding on a truck on which he was employed as a helper. The truck was loaded with beer and soft drinks and was driven by Knight, another employee of Aronovitch.

The evidence is that Bradshaw, who was seated next to the driver, opened the door of the cab, saying that he was going to get a bottle of soft drink from the body of the truck. Since the truck was then movingat about 20 miles per hour, Knight said to Bradshaw, "Wait until I get to the next stopping place and I will get you a cold drink." Disregarding this suggestion or warning, Bradshaw left the cab and in the effort to get the bottle fell from the truck and was killed.

While Bradshaw was permitted to satisfy his thirst with a soft drink on the truck, he had been admonished on a previous occasion that it was dangerous for him to try to procure a bottle while the truck was in motion.

There is no claim that the act of Bradshaw in attempting to obtain the soft drink bottle from the truck, contrary to the admonition of the driver, constituted willful misconduct. The only question presented to us is whether Bradshaw was killed by an "accident arising out of and in the course of the employment" as required by the provisions of the Workmen's Compensation Act. Michie's Code, § 1887(2) (d).

"The expressions 'arising out of and 'in the course of the employment are not synonymous; but the words 'arising out of are construed to refer to the origin or cause of the injury, and the words 'in the course of to refer to the time, place, and circumstances under which it occurred." 71 C.J. p. 644, § 396.

An accident occurs "in the course of the employment" when it takes place within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling duties of his employment or engaged in doing something incidental thereto. 71 C. J. p. 659, § 404; Lasear, Inc., v. Anderson, 99 Ind.App. 428, 192 N.E. 762, 765.

In re McNicol, 215 Mass. 497, 102 N.E. 697, L.R.A.1916A, 306, a leading case, it is said that an injury "arises 'out of the employment, when there is apparent to the rational mind upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury. Under this test, if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation as a result of the exposure occasioned by the nature of the employment, then it arises 'out of the employment. But it excludes an injury which cannot fairly be traced to the employment as a contributing proximate cause and which comes from a hazard to which the workmen would have been equally exposed apart from the employment. The causative danger must be peculiar to the work and not common to the neighborhood. It must be incidental to the character of the business and not independent of the relation of master and servant. It need not have been foreseen or expected, but after the event it must appear to have had its origin in a risk connected with the employment, and to have flowed from that source as a rational consequence."

In Farmers' Manufacturing Co. v. War-fel, 144 Va. 98, 103, 131 S.E. 240, 241, we approved this statement in Edelweiss Gardens v. Industrial...