Feeney v. Hartley

• Decision Date: 18 September 1924
• Citation: 124 S.E. 220
• Court: Virginia Supreme Court
• Parties: HONAKER & FEENEY et al. v. HARTLEY.

124 S.E. 220

HONAKER & FEENEY et al.

v.HARTLEY.

Supreme Court of Appeals of Virginia.

Sept 18, 1924.

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

Appeal from Circuit Court, Russell County.

Proceedings under the Workmen's Compensation Act by Sarah Hartley to obtain compensation for the death of her husband, L. D. Hartley, opposed by Honaker & Feeney, employers, and the Maryland Casualty Company, insurance carrier. An award of compensation was affirmed by the circuit court, and the employers and insurance carrier appeal. Affirmed in part, and reversed in part.

This is an appeal from the judgment of the circuit court which (1) affirmed an award of the Industrial Commission, under the Workmen's Compensation Act (Laws 1918, c. 400), in favor of the claimant, Sarah Hartley, of compensation for the death of her deceased husband, L. D. Hartley, the employee, who received the injury in question; and (2) which required the employer and insurance carrier to pay to the claimant's attorneys, in addition to the said award in favor of the claimant, the attorneys' fee of $150 allowed by the Commissidn, the 'judgment of the court below departing, as to this matter, from the award of the commission in this, the award of the commission allowed this attorneys' fee to be paid out of the money awarded the claimant, whereas, the judgment of the court does not allow that to be done, requiring it to be paid, as aforesaid, in addition to the award in favor of the claimant.

The statement of facts and the finding of facts by the Industrial Commission are, so far as need be set out here, as follows:

"Statement of Facts.

"Honaker & Feeney were engaged in the lumber business in Russell county, Va., and came within the provisions of the Workmen's Compensation Act.

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"The appellee, Sarah Hartley, on behalf of herself and her minor children, filed a claim before the Industrial Commission of Virginia, claiming from appellants compensation for the death of her said husband. The appellants contested the claim on the sole ground that the injuries to and the subsequent death of said L. D. Hartley did not 'arise out of and in the course of the employment.' The Industrial Commission awarded compensation to appellee, from which award appellants appealed to the circuit court of Russell county, which court affirmed the award of the Industrial Commission, and entered judgment in favor of the appellee for the amount of compensation awarded by the Industrial Commission, and, in addition thereto, the sum of $150 for attorneys' fees.

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"Findings of Fact of the Industrial Commission.

"The claimant is the widow of L. D. Hartley. On December 2, 1922, the said L. D. Hartley was in the employ of the firm of Honaker & Feeney, at or near Clinchfield, Russell county, Va. The employer was engaged in the businessof cutting the timber from a tract of about 1,-

000 (acres), on which they owned the stumpage.

"L. D. Hartley was a woodsman, that is, he went into the woods to cut the trees. He also sharpened saws whenever necessary.

"The employer maintained and operated, for the convenience of its employees, a boarding house and various sleeping or bunkhouses. Employees were charged 75 cents per day for board and lodging by the company. The boarding house was at a distance variously estimated at from 30 to 100 yards from the bunkhouse where Hartley slept. Leading from the door of this bunkhouse to a tramroad was a board walk, about 2% feet wide, extending for a distance of some 12 to 15 feet. At the point where Hartley fell, the witnesses estimated that this walk was some 3 to 4 feet above the ground.

"It was customary for the employees to eat their breakfast at or near 6 o'clock in the morning.

"The morning of December 2, 1922, L. D. Hartley went to breakfast at the usual time, and was returning to the bunkhouse after breakfast, when he slipped and fell off the board walk at a point 6 or 7 feet from the door of the bunkhouse. It was still dark at the time.

"Employer's woods foreman had instructed the woodsmen to return to the bunkhouse immediately following breakfast, there to await further instructions as to the location of the day's work. The men were in the habit of leaving their hats, coats, etc., at the bunkhouse when they went to breakfast. On December 2, 1922, the woods foreman referred to had left the work temporarily, and instructed Hartley to keep the time of the men during his absence, and also to notify the men at the bunkhouse, following breakfast, as to where they were to work that day. However, except for this, no change was effected in Hartley's position, and he continued to work in the woods as before.

"After he had fallen from the walk in the manner set out above, Hartley was at once assisted into the bunkhouse, and a physician summoned. Examination showed that he was suffering from an injury to the urethra, and was bleeding profusely. The physician directed that he be sent to the George Ben Johnston Memorial Hospital, at Abingdon, and he was put in a car and taken there the same day.

"He apparently was making satisfactory progress at the hospital until December 12th, when he was examined preliminary to being discharged. This examination, however, was not satisfactory, and it was decided that it would be necessary to examine his posterior urethra. Following the usual method in such cases, a cocaine solution was prepared for injection. This solution was considerably weaker than that usually given to male patients, being slightly less than one-half ounce of four per cent, cocaine solution. This was injected into the urethra. Immediately he began to manifest the most alarming symptoms, and died within less than 20 minutes; the medical testimony being that he apparently died of cocaine poison, he being one of those persons to whom cocaine is absolutely poison.

"Although at the outset of the hearing the insurance carrier interposed as a ground of defense, 'That the death of the deceased did not result from the accident, but from an injection of cocaine, ' this ground of defense has been abandoned, leaving only the question as to whether the accident was in the course of the employment."

S. L. Sinnott, of Richmond, for appellants. Pennington, Price, Jones & Curtiu, and St. John & Gore, all of Bristol, for appellee.

SIMS, P., after making the foregoing statement, delivered the following opinion of the court:

There are only two questions presented for decision by the assignments of error, which will be disposed of in their order as stated below:

(1) Did the injury in the instant case arise out of and in the course of the employment of the injured employee, within the meaning of the Workmen's Compensation Act?

The question must be answered in the affirmative.

Section 2, subsec. (d) of the Workmen's Compensation Act thus defines the injury for

which compensation is provided by such law:

" '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."

Whether an injury (which must, of course, be accidental, as is prescribed by the statute) to an employee engaged in an industrial business arose out of or in the course of the employment of the injured employee may be very difficult to determine under some circumstances, as is illustrated by the numerous controversies over that question, which have arisen under the various Workmen's Compensation Laws of England and of the different states of the United States of America, which contain the same definition as that in question contained in the Virginia statute, as appears from the cases on the subject in the books. And these cases demonstrate that it is practically impossible to formulate any one definition that will include every injury embraced in the above-quoted statutory definition, and will exclude all injuries not embraced therein. These cases further demonstrate that very little, if any, concrete help toward the correct determination of the question under consideration in a particular case is derived from the consideration of other cases involving different circumstances. About all that one finds in the various cases of differing circumstances are illustrations of the application of the general principle involved, and that, after all, is about as concretely and as clearly expressed in the statute as it can be expressed in any attempted all-embracing and all-excluding definition of the injury in question. It is made plain also by these decisions, and, indeed, is plain from the mere reading of the statute itself, that the intent and purpose of the statute is tomake every industrial business bear the pecuniary loss, measured by the payment of compensation provided for in the statute, of all accidental injuries to employees engaged therein to the hazard or risk of the happening of which the injured employee is exposed, in a peculiar or abnormal degree, because of the fact that he is an employee engaged in the particular business. This is the general principle which the statute means to apply by the definition in question, and this principle must be used as the light to light the way in the quest as to whether the injury which is involved in any particular case is such an injury as is embraced in the statute. And without attempting any general definition applicable to all cases, we deem it sufficient here to say this:

Certainly, wherever the injured employee is exposed to the happening of the injury which he has sustained, because of the fact that he is at the time of the accident walking along a walkway provided by the employer for his use at such a time...