Dreyfus & Co. Inc v. Meade

• Decision Date: 17 September 1925
• Citation: Dreyfus & Co. Inc v. Meade, 142 Va. 567, 129 S.E. 336 (1925)
• Court: Virginia Supreme Court
• Parties: DREYFUS & CO. Inc., et al. v. MEADE.

129 S.E. 336

DREYFUS & CO. Inc., et al.

v.MEADE.

Supreme Court of Appeals of Virginia.

Sept. 17, 1925.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Course of Employment.]

Appeal from Industrial Commission.

Proceedings under the Workmen's Compensation Law for injuries, by Joseph Meade, claimant, opposed by Dreyfus & Co., Inc., employer, and the Royal Indemnity Company, insurer. From an order of the Industrial Commission granting an award, the employer and insurer appeal. Reversed.

Robert L. Nase, of Richmond, for appellants.

S. L. Sinnott, of Richmond, for appellee.

PRENTIS, P. The appellants complain of an award made by a majority of the Industrial Commission (Hon. C. G. Kiser, Commissioner, dissenting).

Meade was employed by Dreyfus & Co. as night watchman, at their store located at the southeast corner of Second and Broad streets, Richmond, Va., and his duty required him to be on the premises or immediately adjacent thereto. About 11:30 p. m., May 10, 1924, he was walking north across Broad street, at First street, a block away from the store, for the purpose of getting a cup of coffee at a restaurant about two blocks away from the store, when he was struck by an automobile, from which he sustained injuries which he claims are compensable by his employer under the Virginia Workmen's Compensation Act (Laws 1918, c. 400).

The error assigned is that the commission erred in holding that this injury arose "out of and in the course of" Meade's employment.

That an injury to be compensable must arise out of and in the course of the employment, is conceded, for so the act provides.

In the case of Mueller Construction Co. v. Industrial Board, 283 Ill. 148, 118 N. E. 1028, L. R. A. 1918F, 891, Ann. Cas. 1918E, 808, the Supreme Court of Illinois has clearly construed this language and expressed the conclusion which accords with the almost unanimous view of the courts in construing similar statutes, thus:

"The words 'arising out of and the words 'in the course of are used conjunctively. In order to satisfy the statute both conditions must concur. It is not sufficient that the accident occur in the course of the employment, but the causative danger must also arise out of it. The words 'arising out of refer to the origin or cause of the accident and are descriptive of its character, while the words 'in the course of refer to the time, place, and circumstances under which the accident takes place. * * * By the use of these words it was not the intention of the Legislature to make the employer an insurer against all accidental injuries which might happen to an employee while in the course of the employment, but only for such injuries arising from or growing out of the risks peculiar to the nature of the work in the scope of the workman's employment or incidental to such employment, and accidents in which it is possible to trace the injury to somerisk or hazard to which the employee is exposed in a special degree by reason of such employment. Risks to which all persons similarly situated are equally exposed and not traceable to some special degree to the particular employment are excluded."

Dietzen v. Industrial Board, 279 Ill. 11, 116 N. E. 684, Ann. Gas. 1918B, 764, Hopkins v. Michigan Sugar Co., 184 Mich. 87, 150 N. W. 325, L. R. A. 1916A, 310, and State ex rel. v. District of Ivasca Co., 140 Minn. 470, 168 N. W. 555, 15 A. L, R. 579, L. R. A. 1916A, 40, are among the cases which support this construction.

These are the findings of fact:

"It is agreed that at the time of this accident, and prior thereto, the injured was in the employ of Dreyfus & Co. as a night watchman, his duty being to watch the building at night, and that his average weekly wage was $18, that as he was crossing the street in the vicinity of the employer's place of business during the night of May 10th, about 11:30 p. m., he was struck and injured by an automobile, and that the injuries described by the physician, Dr. Mauck, resulted from the accident in question.

"It further appears from the testimony of the claimant, and also of witnesses for the insurance carrier, that the claimant's duties required him at times to be on the outside of the building. He was employed as night watchman and porter, and was on duty from 5:30 p. m. until about 9:00 a. m. It further appears that it was his custom during the night to cross the street and go to a lunchroom or restaurant, about two blocks below, for the purpose of either getting a lunch or of getting milk or coffee to eat with his lunch, and that this custom was well known to his employer.

"On the night of his injury, as set out above, he was crossing the street to the opposite side for the purpose mentioned when he was struck by an automobile and sustained the injuries in question. It appears from the testimony of Dr. Mauck, who attended him following the injury, that he sustained a compound fracture of both bones of the right leg just below the knee, and that as a result he has been ever since totally disabled, and is at the present time.

"The claimant himself testified that the restaurant to which he was proceeding is so located that it was possible for him, even from it, to observe the front of the building, and that he never had the habit of remaining in the restaurant except for a very brief period of time, as he never ate his lunch there, but would get it or the milk or coffee and take them back to the building where he ate his lunch. He was not given a regular lunch hour by the employer, but remained on duty during the hours mentioned at all times."

It is certainly clear from these facts that Meade's duty as a night watchman did not require him to be in Broad street at the place where the automobile struck him; that he at the precise time of his injury was on a personal errand and was not performing any service to his employer as watchman.

The majority of the commission reached the conclusion that his injury is compensable under the statute by differentiating this case from Taylor v. Binswanger & Co., 130 Va. 545, 107 S. E. 649, Life Insurance Co. of Va. v. Wood, 7 Va. L. Reg. (N. S.) 827, and other lunch hour and street injury cases.

We find ourselves unable to agree that any such distinction can be logically supported. To ingraft such an exception introduces an element of uncertainty which it would be difficult either to limit or to apply practically, and which would do violence to the language of the statute.

In Taylor v. Binswanger & Co., supra, this...