Globe Indemnity Co. v. Forrest

• Decision Date: 14 November 1935
• Citation: Globe Indemnity Co. v. Forrest, 165 Va. 267, 182 S.E. 215 (1935)
• Parties: GLOBE INDEMNITY COMPANY, INSURER, AND COMMONWEALTH, ETC. v. ROBERT H. FORREST, ETC.
• Court: Virginia Supreme Court

Page 267

165 Va. 267

GLOBE INDEMNITY COMPANY, INSURER, AND COMMONWEALTH, ETC. v. ROBERT H. FORREST, ETC.

Supreme Court of Virginia, Richmond.

November 14, 1935.

Present, Campbell, C.J., and Holt, Hudgins, Browning, Chinn and Eggleston, JJ.

1. MASTER AND SERVANT — Injury to Member of National Guard — Relationship Not Broken by Temporary Absence from Camp on Pass — Case at Bar. — In the instant case, an appeal from an award of compensation, claimant, an enlisted member of the National Guard, while in attendance upon the annual encampment, was given a pass to leave the reservation for the evening. While in the neighboring town a member of the military police ordered claimant to take one of his companions, who was under the influence of intoxicants, back to camp. En route his companion sat down on a railroad track and claimant while trying to move him was run over and injured by an electric car. The insurance carrier contended that when claimant availed himself of the privileges of the pass to leave the reservation there was a cessation of the relation of master and servant.

Held: That the relationship of master and servant was continuous from the moment when claimant reported for duty, in compliance with orders from the State, until he was released from active employment by the termination of said orders. The relationship was not broken whom claimant went to the neighboring town on pass.

2. MASTER AND SERVANT — Injury to Member of National Guard — Negligence Not Constituting Misconduct Precluding Recovery — Case at Bar. — In the instant case, an appeal from an award of compensation, claimant, an enlisted member of the National Guard, while in attendance upon the annual encampment, was given a pass to leave the reservation for the evening. While in the neighboring town a member of the military police ordered claimant to take one of his companions, who was under the influence of intoxicants, back to camp. En route his companion sat down on a railroad track and claimant also sat down for a few moments, but seeing an electric car approaching, tried to move his companion. While so engaged he was run over and injured. The insurance carrier emphasized the admission of claimant that he might have nodded while sitting on the track before the accident occurred, as showing misconduct precluding recovery.

Held: That the fact that claimant might have dozed could be regarded as nothing more than negligence which did not preclude his recovery.

Appeal from an award of the Industrial Commission of Virginia.

The opinion states the case.

Aubrey R. Bowles, Jr., for the appellant.

H. Clark Thompson and William H. Sands, for the appellee.

BROWNING, J., delivered the opinion of the court.

The Industrial Commission awarded Robert H. Forrest, an infant, compensation in the sum of $14 per week for a period of 400 weeks, under the provisions of sections 32(s) and 30 of the Workmen's Compensation Act (Acts 1918, ch. 400, section 30, as amended by Acts 1930, ch. 54, and section 32(s), as added by Acts 1930, ch. 54); the payments beginning August 19, 1933. The initial hearing was held before Chairman Kizer and an award was rendered on October 8, 1934. On a review, the full commission affirmed the findings of fact of October 8, 1934 and the award then made. This was on November 14, 1934. An appeal from the findings of the commission was allowed by this court.

The case grows out of an accident and consequent injuries to Robert H. Forrest, who was under twenty-one years of age, while he was an enlisted member of the Virginia National Guard, and, as such, in attendance upon the annual encampment of his military organization, Battery "D," 111th Field Artillery, at Virginia Beach for two weeks during the month of August, 1933.

On the night of August 19, 1933, Forrest was given a pass to leave the military reservation and visit the adjacent town of Virginia Beach. He left the reservation in the company of other soldiers at about 7:30 in the evening and visited a number of places of amusement at Virginia Beach.

While at Virginia Beach, he met Corporal Gillen and Private Phillips, both members of his battery, and they remained together for a portion of the evening. At about 10 p.m., these three men met Lieutenant Tennis, an officer of their organization, then engaged in military police duty, by order of military authority. Lieutenant Tennis observed that the two men were under the influence of intoxicants, whereupon he ordered Corporal Gillen to return to camp and after satisfying himself that Private Forrest was sober, he ordered him to take Phillips back to camp. Recognizing this order, and pursuant thereto, Forrest began its execution by starting with Phillips toward the camp and Corporal Gillen accompanied them. En route Phillips and Gillen went into a place of entertainment, called, "The Three Musketeers," while Forrest waited for them on the outside.

Corporal Gillen and Private Phillips then came out and Forrest proceeded with Phillips toward the camp, Gillen accompanying them. They had gone a few blocks in the direction of the camp when Phillips turned into a side street and Forrest followed him. Phillips went down the side street for about a block and sat down upon a railroad track. Forrest undertook to persuade Phillips to go on with him to camp, but this was unavailing. Forrest then sat down beside him on the track, which he thought was a spur track leading into the camp, and waited until he thought Phillips' condition was such that he could be induced to return with him to camp. While they were sitting there, Forrest observed the approach of an electric car some distance off. He tried to arouse Phillips but without avail. He then got off the truck, himself, and went in front of Phillips and tried to pull him off the rails. He was unable to accomplish this and he got in such a position between the tracks as to be able to grasp Phillips under his armpits and lift him from the rail, but in doing this, Forrest's foot slipped and he fell with his feet extending across the rail where they were run over by the oncoming electric car, which necessitated their amputation. This narrative is in accordance with the testimony of the claimant and his witnesses and the findings of fact by the commission, which testimony, however, is in conflict with that of the motorman operating the car.

The contention of the appellant, who is the insurance carrier is that the accident did not arise out of and in the course of the claimant's employment, but that it was the result of misconduct on the part of the claimant which bars him from the allowance of compensation under section 14 of the act (Acts 1918, ch. 400).

As to the first contention, the carrier urges that, when the claimant was given a pass to leave the military reservation for Virginia Beach and proceeded to avail himself of its privileges, there was a cessation of the relation of master and servant between himself and the State of Virginia, his employer.

If this case involved ordinary civil employment, this position might or might not be sound, depending upon the circumstances of the particular case.

But here is an instance of an enlisted soldier in the military service of the State and...