Graham v. Gloucester Fur. Corp.

• Decision Date: 13 January 1938
• Citation: 169 Va. 505
• Court: Virginia Supreme Court
• Parties: LELAND L. GRAHAM v. GLOUCESTER FURNITURE CORPORATION.

Page 505

169 Va. 505

LELAND L. GRAHAM v. GLOUCESTER FURNITURE CORPORATION.

Supreme Court of Virginia, Richmond.

January 13, 1938.

Present, All the Justices.

1. APPEAL AND ERROR — Record — Record Made Up of Transcripts of Depositions and Testimony Heard Ore Tenus. — Even where the record is made up of a transcript of the depositions, or a transcript of testimony heard ore tenus and properly authenticated by the court and duly filed, or by depositions and testimony, duly authenticated as indicated, the record is in appealable form if the same is properly certified by the clerk of the chancery court.

2. STATUTES — Construction — Weight of Practice Uniformly Pursued for Great Length of Time. — Where a practice which insures and protects the rights of the parties has been uniformly pursued for a great length of time, such practice should be regarded as showing what the law is on the subject.

5. WORKMEN'S COMPENSATION ACT — Appeal from Award of Industrial Commission — Necessity for Authentication of Evidence — Case at Bar. — In the instant case, an appeal from an award of the Industrial Commission, appellee moved to dismiss the case on the ground that the evidence and incidents of the hearing before the commission were not properly before the court, because the record was only certified by the secretary of the commission. Appellee contended that appeals from the Industrial Commission should be in the same manner as appeals in equity, and that the evidence and other incidents of the hearing should be preserved by bill of exceptions or a certificate duly authenticated by some member of the commission. Section 1887(61) of the Code of 1936 provides that, in taking an appeal from an award of the Industrial Commission, the filing with the clerk of the appellate court of ten typewritten copies of the record duly certified by the secretary of the commission, shall be taken as a substitute for printing such record, and that the secretary of the commission shall certify to the appellate court as a part of the record all the findings of fact upon which the action appealed from was based.

Held: That the motion to dismiss must be overruled.

4. WORKMEN'S COMPENSATION ACT — Rate of Compensation — Employee Rendering Services to Two Employers — Case at Bar. — In the instant case, an appeal from an award of the Industrial Commission, the evidence showed that appellant was not a regular employee of the appellee but had been working for another corporation for about nine years, and that at the time of the injury his work was of a temporary nature in the capacity of a steeplejack or stackclimber, while his regular employment was as a mechanic who acted in a supervisory capacity and had authority to direct and watch other men in the conduct of their mechanical work. Appellant contended that he was, at the time of the accident, engaged in the same character of work as that performed for his co-employer, and therefore was entitled, under previous rulings of the Industrial Commission, to the maximum rate of compensation, instead of the minimum rate which was awarded.

Held: That, under the facts, the rule that where an employee renders similar services to two employers he is, in case of accident, entitled to the maximum rate of compensation, did not apply.

Appeal from an award of the Industrial Commission of Virginia.

The opinion states the case.

Parrish, Butcher & Parrish, for the appellant.

Sinnott & May and V. P. Randolph, Jr., for the appellees.

CAMPBELL, C.J., delivered the opinion of the court.

Upon the calling of this case, the appellee, by counsel, moved the court to dismiss it upon the ground that the evidence and incidents of the hearing before the Industrial Commission are not properly before the court, because the record is only certified by the secretary of the commission.

The contention of appellee is that appeals from the Industrial Commission shall be in the same manner as appeals in equity, and that the evidence and other incidents of the hearing should have been preserved by a proper bill of exceptions or by a certificate duly authenticated by some member of the Industrial Commission. In support of this contention, appellee cites section 1887(61) of the Code, which reads as follows:

"Appeals shall lie from such award to the Supreme Court of Appeals in the manner as provided by law in equity cases from circuit and corporation courts; provided, however, that the petition for such appeal shall be presented to the Supreme Court of Appeals, or one of its judges if the court be not in session, within thirty days from the date of such award, or within thirty days after receipt of notice to be sent by registered mail of such award. In such case the filing with the clerk of the appellate court of ten neatly typewritten copies of the record, duly certified by the secretary of the commission, shall be taken as a substitute for printing such record. The secretary of the commission shall certify to the appellate court, as a part of the record, all the findings of fact upon which the said action appealed from was based."

In support of counsel's construction of the statute, the case of Ross Cutter Company Rutherford, 157 Va. 674, 161 S.E. 898, 901, is relied upon. That case does not support in its entirety the contention of counsel. It has no reference whatever to the "ordinary" appeal in an equity case, but simply holds that:

"Where testimony is...