City Of Alexandria v. Mcclary

Citation188 S.E. 158
PartiesCITY OF ALEXANDRIA . v. McCLARY.
Decision Date12 November 1936
CourtSupreme Court of Virginia

Appeal from Industrial Commission of Virginia.

Proceeding under the Workmen's Compensation Act for the death of Clarence J. McClary, employee, opposed by the City of Alexandria, employer, and the Maryland Casualty Company, insurance carrier. From an award of compensation by the Industrial Commission, employer and insurance carrier appeal.

Affirmed.

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

Sinnott & May and Virgil P. Randolph, Jr., all of Richmond, for appellant.

Frederick L. Flynn, of Alexandria, for appellee.

HOLT, Justice.

This is an appeal made from an award made by the Industrial Commission of Virginia. Clarence J. McClary, a police officer of the city of Alexandria, was killed on March 17, 1935, under these conditions:

On the preceding day, Saturday, March 16th, Mr. Saunders of the Alcoholic Beverage Control Board, speaking from Lees-burg in Loudoun county, called up Capt. J. S. Arnold, chief of police of the city of Alexandria, and said that there was trouble in their attempt to arrest one who had shot a federal agent. Saunders asked Arnold to come with men properly armed to his assistance. Arnold replied that such a call would have to come from the sher iff. Such a call did come, and this chief with policemen, Hawes and Curtis, went to Leesburg, not then accompanied by McClary, and found there both state and federal officers engaged in this man hunt. Their force seemed to be sufficient, and Arnold at his request was told that he and his force might return to Alexandria. They did return. About 12 o'clock that night he was again called up by Sheriff Adrian and was told that his services were again needed. McClary was then at police headquarters. Adrian started to make a list of those who were to accompany him. All of his officers were willing to go so this list was not completed. He said to them, "As many as want to go meet me here at 3:30." They met, armed, McClary among them, at that hour, and in response to the call which had been made went back to Leesburg, where they were sworn in as deputies by the sheriff of Loudoun county. Search was then made, which was at first without results. Afterwards McClary and some of his associates said that they would like to go over and look at the still which the fugitive, Quesenber-ry, had been operating. They did go, and it was there that McClary was shot and killed. It is not perfectly clear who was in general charge of the search. It was either a federal officer, Sheriff Adrian, or Mr. Saunders of the A. B. C. Board. But these Alexandria policemen went at the call of and with Chief of Police Arnold, who was their immediate commanding officer. Upon return of these city policemen to their home, report was made to the city manager of Alexandria as to what had been done, and on March 26, 1935, the city council of Alexandria adopted this resolution introduced by the mayor:

"Whereas, in responding to the call of duty, and in line of duty, Corporal Clarence McClary of our Police Department gave his life in the suppression of crime and in carrying out his duties as an officer.

"Therefore Be It Resolved, by the City Council of Alexandria, that we extend to the Widow and Children of the Late Clarence McClary the sympathies and condolences of the City of Alexandria, and

"Be It Resolved Further, that the name of Corporal Clarence McClary be kept on the payroll of the Police Department of the City of Alexandria at full salary, and that said salary be paid to the widow ofthis officer, until such time as proper provisions are made for the care and maintenance of his family either by the Federal Government, or the State of Virginia, or Loudoun County, or further action of Council."

McClary left a widow and four infant children. She is the claimant here, city of Alexandria was the employer, and the Maryland Casualty Company was the insurance carrier.

This claimant was awarded $14 a week for three hundred weeks beginning March 17, 1935, subject to such modifications as subsequent conditions might require. This award was for the joint benefit of herself and her children. An attorney's fee for $475 was allowed "to be deducted from the compensation awarded." Burial expenses not to exceed $150 were also allowed.

By act approved August 7, 1935, by Private Bill, No. 194, 74th Congress H. R. 6825, 49 Stat.-, Congress gave Mrs. McClary $75 a month, in no event to exceed $10,000; said allowance to be in full settlement for all claims against the federal government.

Capt. Arnold was questioned as to custom and testified as follows:

"O. Have you ever taken your men outside of the City before on any emergency occasion? A. We are out of the City practically every day.

"Q. In the adjacent counties of the Commonwealth, you will co-operate with them? A. In Northern Virginia and throughout the territory surrounding the City of Alexandria.

"Q. Was a Crime Conference held which you attended? A. A crime Conference was called by the President of the United States and presided over by the Attorney General, in which they advocated co-operation between local, State and Federal and all law enforcement bodies.

"Q. Your police officers are state officers? A. We are given the State oath when we take the oath.

"Q. To enforce the laws of the State of Virginia as well as the laws of Alexandria? A. That is my understanding."

This custom McClary must have known. He said to his wife as he left for Lees-burg, "When a man tells you to go you have to go."

Plainly McClary's death occurred in the course of his employment. That it did or did not rise out of it is debatable. As between them is there any causal connection?

In our approach, this cardinal rule of construction is always to be remembered: "The Workmen's Compensation Act (Acts 1918, c. 400, p. 637), although in derogation of the common law, is highly remedial, and should be liberally construed in favor of the workman." Gobble v. Clinch Val. Lbr. Co., 141 Va. 303, 127 S.E. 175, 176; Bristol Builders' Supply Co. v. McReynolds, 157 Va. 468, 162 S.E. 8.

A policeman is a State and not a municipal officer (Burch v. Hardwicke, 30 Grat. (71 Va.) 24, 32 Am.Rep. 640; Mann v. City of...

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