Feitig v. Chalkley

• Decision Date: 22 April 1946
• Citation: 38 S.E.2d 73,185 Va. 96
• Court: Virginia Supreme Court
• Parties: FEITIG. v. CHALKLEY.

185 Va. 96

38 S.E.2d 73

FEITIG.

v.CHALKLEY.

Supreme Court of Appeals of Virginia.

April 22, 1946.

Error to Law and Equity Court of City of Richmond, Part 2; Haskins Hobson, Judge.

On rehearing. Former opinion adhered to. For former opinion, see 184 Va. 553, 35 S.E.2d 827.

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

Bowles, Anderson & Boyd, of Richmond, for plaintiff in error.

Allen & Allen and Robert Lewis Young, all of Richmond, for defendant in error.

HUDGINS, Justice.

Prior to the original opinion in this case, reported in 184 Va. 553, 35 S.E.2d 827, this court had not considered whether the Virginia Workmen's Compensation Act, Mich-ie's Code 1942, sec. 1887(1) et seq., prohibited an injured employee from maintaining an action at law against his coemployee for negligence or wrong causing the injuries. We thought that the importance of the question required a more thorough investigation than appeared in the arguments and briefs of counsel on the original presentation, hence we granted a rehearing but limited the argument to this single question.

The Workmen's Compensation Law has passed the experimental stage. It is as essential to industry as it is to labor. It comprises one of the most important branches of law. Upon its effectiveness depends the potential welfare of a large number of employees and their families. It places upon industry as an expense of the business the pecuniary loss, measured by the compensation provided in the statute, attendant upon all accidents to employees within the hazards of the industry. It extends the employer's liability to all accidental personal injuries "arising out of and in the course of the employment, " the expense of which is added to the cost of production. The employer surrenders his right of defense on the ground of contributory negligence and the common-law doctrines of the assumption of risk and fellow servants. The rules of evidence are relaxed. The employee surrenders his right to a trial by jury and agrees to accept an arbitrary amount fixed by statute in lieu of full compensation forthe injuries sustained. He gains a wider security. The issue of negligence or non-negligence of the employer and the fellow servants is eliminated. Long, costly and delayed litigation is avoided. A smaller but speedier recovery is guaranteed. This theory of compensation for accidental injuries has been accepted by practically all of the States as well as the United States and its possessions. The application of particular phases of the law in the different States depends upon the peculiar wording of the pertinent statutes.

It is apparent from a review of the compensation laws in the different States that the chief benefit of the law to the employees is the abolition of negligence as a prerequisite to recovery and of the common-law defenses as a means of defeating recovery.

While negligence is eliminated as a basis for recovery, industrial accidents still occur as a result of negligence and it may be said to be the chief cause of them. This negligence may be the act or omission of the employee himself, of another employee within the scope of the same business, or of a stranger outside the 6cope of the business.

It is clear that where the negligence causing the injury is that of a stranger to the business, the employee should not, and is not, deprived of his common-law right of action against such stranger for the reason that, though the accident may arise out of and in the course of the employment, the dominant cause of the accident is not inherent in the business and is not a loss which the act contemplates that the industry should ultimately bear. As to the employee, the injury is an industrial accident primarily, but, inasmuch as he was on his master's business at the time and was injured by a stranger to the business, it is not truly and inherently within the industrial field.

It is plain that compensation is the only remedy where the employer's negligence is the cause of the injury. It is equally plain that where the accidental injury is due to the negligence of a fellow servant, it arises out of and in the course of the employment and is a risk inherent in the business caused to one within the employment by another within the employment. On both bases, the injury is within the field of industrial accidents, and it was the purpose of the act to cast the loss upon the business as an ultimate expense thereof.

Defendant in error contends that no provision of the Workmen's Compensation Act deprives an injured employee of the right to maintain an action against a coemployee whose negligence was a proximate cause of the injuries sustained. In other words, defendant in error contends that, under the act, the only person against whom a common-law action for tort is prohibited is the employer himself.

It is conceded that in this case the personal injuries sustained were due to the negligence of a fellow servant. At common law, this concession would defeat plaintiff's right of action against the employer. However, the employer is deprived, in express terms, of this defense by section 16 of the compensation act; and, inasmuch as the injuries were the result of an accident "arising out of and in the course of the employment, " the injured employee is entitled to compensation under the act from the employer or the insurance carrier. Whether or not the injured employee may also maintain an action against his coemployee or fellow servant depends upon the construction of sections 11 and 12 of the act.

As originally adopted in 1918 (Acts 1918, c. 400, P. 640), these sections read as follows:

"Sec. 11. Every employer who accepts the compensation provisions of this act shall insure the payment of compensation to his employees in the manner hereinafter provided, and while such insurance remains in force he or those conducting his business shall only be liable to any employee for personal injury or death by accident to the extent and in the manner herein specified.

"Sec. 12. The rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this act respectively to pay and accept compensation on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, hispersonal representative, parents, dependents or next of kin, at common law or otherwise on account of such injury, loss of service or death."

It will be noted that the common-law right of action against a third party, a stranger to the employment, is not mentioned. Hence, an employee who had sustained an injury by accident arising out of and in the course of his employment would have been entitled to receive compensation under the statute from his employer and would have a right to full compensation from a negligent third party, a stranger to the employment; but, if the negligent party had been the employer or a person conducting his business, the common-law right of action against either would have been prohibited--that is, if the words in the phrase, "he (employer) or those conducting his business, " had been given their ordinary and usual meaning.

In 1920, c. 176, section 12 was amended. This amendment retained the first paragraph of section 12 as quoted, and added three additional paragraphs. These three paragraphs did not give any new right to an injured employee. They did contain restrictions or limitations upon his right to compensation under the statute and upon his right to recover full damages for his injuries from a negligent third party. The amendment provided that an acceptance of compensation constituted an assignment pro tanto of his right of action against such negligent party to his employer or the insurance carrier who had paid or assumed to pay the compensation prescribed.

The pertinent provision of the amendment reads as follows: "The making of a lawful claim against an employer for compensation * * * shall operate as an assignment to the employer of any right to recover damages which the injured employee * * * may have against any other party for such injury * * *."

The specific inquiry is, Do the words, "any other party, " as used in the amendment, include a coemployee or fellow servant, or is a coemployee or fellow servant included in the phrase, "those conducting his business, " found in section 11?

Section 12 and the different amendments have been construed by this court in many cases cited in the briefs. In each of the former opinions, the negligence involved was the negligence of a third party, a stranger to the business. In discussing the rights of the injured employee and the employer as against a third party, expressions are found in some of the cases to the effect that the only right of the employee which has been abridged by the act is the common-law right of action against his employer. The particular question now before the court was not involved in any of those cases and hence such expressions are mere dicta. Most of the decisions were reviewed in the comparatively recent case of Noblin v. Randolph Corp., 180 Va. 345, 23 S.E.2d 209. It was said repeatedly that the common-law right of an injured employee to maintain an action against a party whose negligence caused his injury still remains unless the statute expressly or by necessary inference curtails or denies it.

The fundamental purpose of the act is to give compensation for accidental injuries within the hazards of the employment. The act does not apply to accidents outside the field of industrial hazards. Within that field the only remedies of the employee are those prescribed by the act. Mr. Justice Eggleston emphasized this in Griffith v. Raven Red Ash Coal Co., 179 Va. 790, 20 S.E.2d 530, 534, where he said: "Our conclusion is that the Workmen's Compensation Act is exclusive in so far as it covers the field of industrial accidents, but no further." (Italics supplied.)

It seems clear that it was the legislative...