Chalkley v. Nolde Bros. Inc

• Decision Date: 24 November 1947
• Citation: 45 S.E.2d 297
• Parties: CHALKLEY. v. NOLDE BROS., Inc., et al.
• Court: Virginia Supreme Court

45 S.E.2d 297

CHALKLEY.

v.NOLDE BROS., Inc., et al.

Supreme Court of Appeals of Virginia.

Nov. 24, 1947.

Appeal from Industrial Commission of Virginia.

Proceeding under the Workmen's Compensation Act by Blanton Rolfe Chalkley, claimant, opposed by Nolde Brothers, Inc., employer, and the American Mutual Liability Insurance Company, insurance carrier, to recover compensation for injuries sustained by the claimant. From an order of the Industrial Commission sustaining the hearing commissioner's decision that the claim was not filed within one-year limitation period, the claimant appeals.

Order reversed and case remanded with direction that Commission hear and determine claim.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, and STAPLES, JJ.

Robert Lewis Young and L. Cutler May, both of Richmond, for appellant.

Wiltshire & Rives, of Richmond, for appellees.

Blanton Rolfe Chalkley, a boy some twelve years of age, accompanied George L. Feitig, a truck driver for Nolde Brothers, Incorporated, on Feitig's bread route. He was engaged by Feitig to help in making deliveries of bread and while so engaged the truck was involved in a collision with another motor vehicle which was be-ing operated by one E. M. Wood. This collision took place on May 1, 1943, in Prince George county, and Blanton Rolfe Chalkley was seriously injured.

Later an attorney was employed to represent young Chalkley and an action was instituted in his behalf in the Law & Equity Court of the City of Richmond, Part Two, for the purpose of recovering indemnity for the injuries so sustained.

After the collision a report of it was made to American Mutual Liability Insurance Company, the insurance carrier of Nolde Brothers, Incorporated, who carried the workmen's compensation liability. That carrier, one of the appellees here, forwarded the report to the Industrial Commission. Mr. Aubrey R. Bowles, Jr., an attorney at law of Richmond, represented Nolde Bros., Inc., and the insurance carrier which carried the automobile liability insurance on the bread truck, in the damage action above mentioned.

A number of defenses were set up under special pleas, among which was, that by implication of law, Chalkley was an employee of Nolde Bros., Inc., and hence entitled only to the indemnity afforded by the Workmen's Compensation law.

The case went to the jury on the issue, among others, whether or not Chalkley was an employee of Nolde Bros., Inc. A verdict in favor of the plaintiff was returned by the jury against Nolde Bros., Inc., and the plaintiff's damages were assessed at the sum of $11,500. Judgment was entered on the verdict on July 21, 1944. This was a finding that Chalkley was not an employee.

After the verdict, but before the judgment approving it, counsel for Nolde Bros., Inc., wrote a letter on April 20, 1944, to the Industrial Commission. The letter was written within a year from the date of the injury to Chalkley, and it reads as follows: "On June 25, 1943, Nolde Brothers Inc. "Re: Claim No. 687-959

"Nolde Brothers, Inc.

"Blanton Rolfe Chalkley

"Industrial Commission of Virginia

"P. O. Box 1794

"Richmond 14, Virginia

"Gentlemen:

"On June 25, 1943, Nolde Brothers, Inc. executed employer's first report of injury in the above matter which was that day delivered to American Mutual Liability Insurance Company, its compensation carrier, and by it filed with you. The compensation carrier has been notified by letter on May 10, 1943, of this accident which occurred on May 1, 1943, at the intersection of State Highways Routes 10 and 625, in Prince George County. Subsequent thereto Blanton Rolfe Chalkley, by his next friend, began an action at common law against Nolde Bros., Inc., and George L. Feitig, in the Law and Equity Court of the City of Richmond, Part Two, of which you have knowledge by reason of his summons to appear therein for your secretary and your Chief Claims Examiner. That action is still pending.

"Inasmuch as no further action has been taken before the Commission and Nolde Brothers, Inc. is desirous of knowing its rights and status in the premises, for that purpose, pursuant to the provisions of Section 58 of the Act, it herewith makes application for a hearing to determine and secure an adjudication by the Commission of its position, status and rights on the facts as they existed and asks that Blanton Rolfe Chalkley, claimant, and American Mutual Liability Insurance Company, its compensation carrier, be made parties to this proceeding.

"Very truly yours,

"Aubrey R. Bowles, Jr.

"Attorney for Nolde Brothers, Inc."

Mr. Allen, counsel for the plaintiff, answered the letter and asserted that Chalkley was not an employee of Nolde Bros., Inc., at the time of the accident and that he had no intention of ever filing any claim under Workmen's Compensation Act before the Industrial Commission, and he committed his client irrevocably to the election to pursue the common law action without any regard to any rights his client might have had before the Industrial Commission.

On April 22, 1944, counsel for American Mutual Liability Insurance Company, the workmen's compensation insurance carrier, addressed a letter to the Industrial Commission of Virginia, copies of which were sent to counsel for all the other parties, in which he stated that the only way in which the statute of limitation as to the claim of Chalkley for compensation before the Industrial Commission could be "saved" was for Chalkley or someone authorized for him to file a claim for compensation before the Commission. He also stated that the application of Nolde Bros., Inc., embodied in the letter of Mr. Bowles did not prevent the running of the statute of limitation as to Chalkley in that it was not in fact the filing of a claim within the meaning of section 58 of the Act. He also notified all parties that Chalkley could at that time, within the time prescribed by law, file his claim before the Commission, inasmuch as one year had not then expired. He also stated in his letter that the institution of the action in the Law & Equity Court conferred jurisdiction upon that court and, it having first taken jurisdiction, had the right to retain it as to the issues involved to the exclusion of any hearing by the Industrial Commission.

Nolde Bros., Inc., in the meantime applied for and obtained a writ of error to the judgment which had been rendered by the Law & Equity Court, Part Two. See Nolde Bros., Inc. v. Chalkley, 184 Va. 553, 35 S.E.2d 827.

This court, upon the writ of error, reversed the judgment, and in doing so held that Chalkley was an employee of Nolde Bros., Inc., and stated that the reversal and dismissal of the case was without prejudice to the plaintiff's right to assert his claim before the Industrial Commission.

On December 1, 1945, after the case had been disposed of in this court, and more than a year from the date of his injury, the mother of Chalkley filed on his behalf, before the Industrial Commission, a claim for the injuries he had received. The case was heard on October 10, 1946, and the hearing commissioner decided against that claim on the ground that it had not been filed within one year from the time the injury was sustained. Upon a review by the full Commission the hearing commissioner was sustained.

The determinative issue in the case is whether or not the letter of Mr. Bowles of April 20, 1944, heretofore set out at length, requesting a hearing under section 58 of the Workmen's Compensation Act filed with the Industrial Commission within a year from the date of injury, can be construed as the filing of a claim for compensation on behalf of Blanton Rolfe Chalkley, and was it sufficient to prevent the running of the statute of limitation set up under section 25 of the Act which provides that "the right to compensation under this act shall be forever barred, unless a claim be filed with the Industrial Commission within one year after the accident." Code 1942, § 1887(25).

Section 58 of the Act, carried in Michie's Code of 1942 as section 1887(58) in part provides:

"If the employer and the injured employee or his dependents fail to reach an agreement in regard to compensation under this act * * * either party may make application to the industrial commission for a hearing in regard to the matters at issue and for a ruling thereon.

"Immediately after such application has been received the Commission shall set the date for a hearing, which shall be held as soon as practicable, and shall notify the parties at issue of the time and place of such hearing * * *."

Upon receipt of the letter from Mr. Bowles the Commission labelled it, "Re: Claim No. 687-959". All subsequent correspondence relating to the subject matter was labelled by the Commission in the same manner. Mr. W. L. Robinson of the Industrial Commission made a memorandum on April 25, 1944, referring to the same claim number and entitling it as "Blanton Rolfe Chalkley v. Nolde Brothers". This memorandum was addressed to Mr. W. H. Nickels, Chairman, and in it Mr. Robinson referred to the above-styled claim and to the letters of counsel. The memorandum is signed by Mr. Robinson, and the following pencil notes appear on the margin of the office memorandum: "Ch. Nickels said take no action nor replies. R. 4/25/44. Col. Deans said take no action. R. 4/26/44."

The full Commission, upon review, finally held that the letter of Mr. Bowles did not constitute a compliance with the terms of section 58 of the Act; that it was never considered or treated by the Commission as an application filed under, the Act, and thatthe case was never placed on the docket of the Commission. The full Commission also held that there was no effort made prior to the date of "said letter by employer and employee to reach an agreement in regard to compensation, a prerequisite to a proper application under section 58; indeed there was not even an issue between employer and employee at that time, since the employee, by counsel, was...