Conner v. Bragg

Citation203 Va. 204,123 S.E.2d 393
Decision Date15 January 1962
Docket NumberNo. 5368,5368
CourtSupreme Court of Virginia

Page 393

123 S.E.2d 393
203 Va. 204
Record No. 5368.
Supreme Court of Appeals of Virginia
January 15, 1962.

Page 394

[203 Va. 205] Felix E. Edmunds and Talmage N. Cooley (Edmunds, Freed & Cooley, on brief), for the appellant.

Humes J. Franklin and Fletcher B. Watson (Gerald W. Smiley, on brief), for the appellee.


I'ANSON, J., delivered the opinion of the court.

This appeal brings under review an award of the Industrial Commission finding that Thomas N. Bragg, the claimant, an employee of Dewey M. Conner, the appellant, was injured on June 20, 1960, at the city dump of Waynesboro, Virginia, as a result of an accident arising out of and in the course of his employment when a frontend loader operated by Bragg went out of control and turned over on him. Compensation was awarded Bragg on account of his total incapacity for work.

It appears from the record that at the time of the accident Bragg was employed as an attendant at Conner's gasoline service station, where he had been so engaged for approximately five or six weeks, and he was in charge of the station for several hours each day during Conner's absence. Prior to that time he had been employed for four or five weeks as a truck driver in Conner's hauling, grading and excavating business.

The dump trucks used in Conner's hauling, grading and excavating business were

Page 395

parked in the service station parking lot at the end of each day's work, and all other equipment used in connection with that business was either left at the job site or some location other than at the service station.

The front-end loader which turned over on Bragg had recently been purchased by Conner for use in his hauling, grading and excavating business at his sand and gravel pit and it was delivered to [203 Va. 206] the service station parking lot late in the afternoon of Saturday, June 18, secured by chains to a 'low boy' trailer. The next morning Bragg climbed aboard the front-end loader while it was still chained to the trailer, activated the engine, raised the bucket and severed the log chain which secured the bucket to the trailer. Conner reprimanded Bragg and told him to 'get off of it and leave it alone.' On the afternoon of the same day Bragg asked Conner to permit him to unload the front-end loader, and in refusing the request Conner told him that he would unload it himself. Thereafter it was unloaded by Conner and left on the service station parking lot.

Sometime in the afternoon of Monday, June 20, Bragg and Conner's young son, in the absence of Conner, cleaned up the service station and placed the trash in a crate. Then Bragg, over the protest of Conner's son, placed the crate on the bucket of the front-end loader, secured it by tying it to the bucket with an old speedometer cable, and proceeded to drive the machine to the city dump.

Bragg had never operated this front-end loader prior to the accident and he was not familiar with its operation. On his way to the city dump he encountered trouble with the machine slipping out of gear and he drove it to the home of one who was familiar with its operation, but who had no connection with either of Conner's businesses, to obtain instructions on how to remedy the trouble. From there he drove to the city dump, and after dumping the trash the machine again jumped out of gear, went out of control, ran down a hill at the dump and turned over on Bragg, causing him serious injuries.

The Commission found that Bragg's lack of knowledge of the operation of the front-end loader made it a dangerous machine in his hands, but that his negligence did not take him out of the scope of his employment.

The Commission also found from the conflicting evidence that Bragg had on two previous occasions hauled trash from the service station to the city dump in one of Conner's dump trucks, and that a truck was not available on the day of the accident. But there was no finding that Conner knew that any of his trucks had ever been used by Bragg for that purpose, and the evidence is undisputed that the trash around the station was usually collected for several days and then taken to the city dump by one of the regular truck drivers.

Under Code § 65-94 the Industrial Commission's findings of fact, if supported by credible evidence, are conclusive and binding on this Court. Stump v. Norfolk Shipbuilding Corp., 187 Va. 932, 935, [203 Va. 207] 48 S.E.2d 209, 210; Lynchburg Foundry Co. v. Irvin, 178 Va. 265, 269, 16 S.E.2d 646, 648. But if there is no credible evidence on which the Commission's findings of fact are based, such findings are not binding upon this Court and the question then presented is one of law. Byrd v. Stonega Coke, Etc., Co., 182 Va. 212, 220, 28 S.E.2d 725, 729; Bagwell v. Doyle, 187 Va. 844, 849, 48 S.E.2d 229, 231.

A finding that an injury was sustained in an accident arising out of and in the course of employment within the meaning of the Workmen's Compensation Act is a mixed conclusion of law and fact and is properly reviewable by this Court. American Furniture Co. v. Graves, 141 Va. 1, 14, 126 S.E. 213, 216. Hence the question presented for us to decide is whether...

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    ...of law. [Great Atlantic & Pacific Tea Co.] A & P v. Robertson, 218 Va. 1051, 1053, 243 S.E.2d 234, 235 (1978); Conner v. Bragg, 203 Va. 204, 207, 123 S.E.2d 393, 395 (1962). Id. at 833, 252 S.E.2d at Also pertinent to issues here raised is the standard by which physical evidence is to be co......
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    ...with little or no discretion. See, e.g. , Code §§ 65.2-500(A), -502(A), -503, -512(A), -518.10 See also Conner v. Bragg , 203 Va. 204, 207-08, 123 S.E.2d 393 (1962) ; Humphries v. Newport News Shipbuilding & Dry Dock Co ., 183 Va. 466, 479, 32 S.E.2d 689 (1945).11 See also Morris v. Morris ......
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