Crews v. Bros

• Decision Date: 16 June 1927
• Citation: 138 S.E. 494
• Parties: CREWS. v. MOSELEY BROS.
• Court: Virginia Supreme Court

138 S.E. 494

CREWS.

v.MOSELEY BROS.

Supreme Court of Appeals of Virginia.

June 16, 1927.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Accident—Accidental.]

Appeal from Industrial Commission.

Proceeding under the Workmen's Compensation Law by Lottie Crews, guardian, etc., claimant, for the death of Stewart Robertson, opposed by Moseley Bros., employer. From an order of the Industrial Commission dismissing the claim, claimant appeals. Affirmed.

Fred Harper, of Lynchburg, for appellant.

Caskie & Frost, of Lynchburg, for appellee.

CAMPBELL, J. This appeal calls in question an order entered by the Industrial Commission, dismissing a claim for compensation filed by the appellant against the appellees.

The undisputed facts found by the commission may be summarized thus: On August 1, 1926, Stewart Robertson, a colored man aged 41 years, to all appearances hale and hearty, was, and had been for 1 year and 8 months prior thereto, in the employment of Moseley Bros., general contractors, at Lynchburg, Va., at an average weekly wage of $18. His employment had been that of digging ditches and making excavations. On the day in question, be and a fellow worker, Addison Cobb, were digging a ditch in the vicinity of Peak-land, a suburb of Lynchburg. The depth of the ditch was shown to have been between 8 and 10 feet. About 11 o'clock a. m., on August 1, 1926, Cobb had occasion to speak to Robertson, and noticed that the latter was not in normal condition, and asked him what his trouble was. He replied that he was not feeling well, whereupon Cobb suggested that he cease work and assisted him from the ditch. Shortly after be had left the ditch, Robertson rapidly became worse and lost con sciousness before a physician reached him. On the arrival of the physician he was sent to the Lynchburg Hospital, Lynchburg, Va., where he died 8 days later.

It appears from the testimony of Addison Cobb that the work he and Robertson were doing on August 1, 1926, was their regular occupation; that sometimes they worked in shallow ditches, and on other occasions they were called upon to dig deeper ditches than that in which they were working when Robertson was taken ill; that it was a reasonably hot day; and that in the ditch it was, of course, "pretty hot."

A certified copy of the weather report as issued by the United States Weather Bureau, at Lynchburg, Va., was introduced In evidence. This shows that the temperature at 11 o'clock a. m., August 1, 1926, was 73°, and at 12 o'clock m. it was 75°. Prior to 11 o'clock the temperature was below 73°.

This appeal presents the sole question, Is a physical collapse, followed by apoplexy and resulting in death 8 days thereafter, an accident, within the meaning of the Workmen's Compensation Law?

The statute (Laws 1918, c. 400) defines an accident as follows:

"Section 2(d). 'Injury' and 'personal injury' shall mean only injury by accident arising out of and in the course of the employment and shall not include a disease in any form, except where it results naturally and unavoidably from the accident."

Before a recovery may be had in this case, the burden is upon the claimant to prove by a preponderance of the evidence that the deceased, Stewart Robertson, suffered an accident arising out of and in the course of his employment. While it is always the endeavor of the courts to construe the compensation statute liberally, in order to carry out its beneficent purpose, it must not be overlooked that liability cannot rest upon imagination, speculation", or conjecture, but must be based upon facts established by the evidence and so found by the commission. U. S. Fuel Co. v. Ind. Com., 310 111. 85, 141 N. E. 401.

The fact that the decedent suffered a stroke of apoplexy, typical in all respects, is not disputed. Webster's New International Dictionary defines apoplexy to be "a sudden diminution or loss of consciousness, sensation, and voluntary motion, usually caused by extravasation of blood or serum into the brain or spinal cord."

The record discloses that on August 1, 1926, Robertson was in his usual hale and hearty condition; that the work he was doing on that day was similar, if not practically identical, to that which he was accustomed to do; that shortly after he left the ditch in which he had been working he lost consciousness...