Griffith v. Raven Red Ash Coal Co., Record No. 2531.
| Decision Date | 08 June 1942 |
| Docket Number | Record No. 2531. |
| Citation | 179 Va. 790 |
| Parties | BESSIE GRIFFITH, ADMINISTRATRIX OF THE ESTATE OF DOUGLAS GRIFFITH, DECEASED v. RAVEN RED ASH COAL COMPANY, INC. |
| Court | Virginia Supreme Court |
Present, Campbell, C.J., and Holt, Hudgins, Gregory, Eggleston and Spratley, JJ.
1. WORKMEN'S COMPENSATION — Construction — Code Sections 1887(12) and 1887(4) — Interpreted in Light of Purpose of Act as a Whole. — Section 1887(12) of the Code of 1936, relating to the effect of the acceptance of the provisions of the Workmen's Compensation Act, and section 1887(4) of the Code of 1936, relating to the presumption of the acceptance of the act, should be interpreted in the light of the purpose of the act as a whole and its other provisions.
2. WORKMEN'S COMPENSATION — Compensable Injuries — Must Arise out of and in Course of Employment. — The death of an employee, in order to be compensable under the Workmen's Compensation Act, must be from an accident arising out of and in the course of the employment.
3. WORKMEN'S COMPENSATION — Nature of Act — Provides Compensation for Injury without Regard to Fault. — The Workmen's Compensation Act provides a system of compensation to an employee or his dependents for injury or death from an injury arising out of and in the course of the employment, without regard to fault as the cause of such injury or death.
4. WORKMEN'S COMPENSATION — Construction — Liberally Construed in Employee's Favor. — Although in derogation of the common law, the Workmen's Compensation Act is highly remedial and should be liberally construed in favor of the workman.
5. COMMON LAW — Abrogation by Statute — Not Changed unless Legislative Intent Plainly Manifested. — The common law is not to be considered as altered or changed by statute unless the legislative intent be plainly manifested.
6. WORKMEN'S COMPENSATION — Effect of Acts on Employee's Other Remedies — Code Section 1887(12) — Injury Not Arising Out of and in Course of Employment. — It is the purpose of section 1887(12) of the Code of 1936, relating to the effect of the acceptance of the provisions of the Workmen's Compensation Act, to exclude the common-law remedies of an employee, his personal representative, etc., only for such injury or death as is covered by section 1887(2) of the Code of 1936 — that is, "by accident arising out of and in the course of the employment" — leaving unimpaired the common-law right of action for damages for the personal injury or death of the employee when such does not arise out of and in the course of the employment.
7. WORKMEN'S COMPENSATION — Effect of Acts on Employee's Other Remedies — Common-Law Remedies Against Employer Unimpaired. — The Workmen's Compensation Act is exclusive in so far as it covers the field of industrial accidents, but no further. To the extent that the field is not touched by the statute, the legislature intended that the employee's common-law remedies against his employer are to be preserved unimpaired.
8. DEATH BY WRONGFUL ACT — Former Adjudication or Res Adjudicata — Denial of Award under Workmen's Compensation Act — Case at Bar. — In the instant case, an action to recover for death by wrongful act, defendant entered a plea of res judicata alleging that a claim had been filed before the Industrial Commission of Virginia for an award of compensation for the death of plaintiff's decedent; that the matter was within the exclusive jurisdiction of such Commission, which had heard and denied the claim. To this plea plaintiff demurred on the ground that the holding of the Commission that plaintiff's decedent was not killed as a result of an accident arising out of and in the course of his employment was merely a finding that the Commission was without jurisdiction of the matter, and that the present action for the wrongful death of decedent which did not arise out of and in the course of the employment, was not barred by the provisions of the Workmen's Compensation Act.
Held: That the plea of res judicata should not have been sustained, since the issue before the Industrial Commission was not the same as in the instant case. Before the Industrial Commission no question of negligence of the employer or the contributory negligence of decedent was involved, since the sole question presented was whether death occurred from an accident arising out of and in the course of employment, and in the instant case the question involved was whether decedent was killed as the proximate result of the negligence of the employer, and whether he was guilty of contributory negligence might likewise be involved.
9. FORMER ADJUDICATION OR RES ADJUDICATA — Identity of Issues — Issues in Both Actions Must Be Identical. — One of the essentials of res judicata is that the issue raised in the second suit must be identical with the issue or one of the issues raised and determined in the first action.
10. WORKMEN'S COMPENSATION — Denial of Award — As Bar to Action for Damages. — A denial of an award of compensation, on the ground that the injury did not arise out of and in the course of the employment, is not res judicata in the employee's subsequent action at law to recover damages of the employer.
11. DEATH BY WRONGFUL ACT — Former Adjudication or Res Adjudicata — Denial of Award under Workmen's Compensation Act — Case at Bar. — In the instant case, an action to recover for death by wrongful act, defendant entered a plea of res judicata alleging that a claim had been filed before the Industrial Commission of Virginia for an award of compensation for the death of plaintiff's decedent and that the matter was within the exclusive jurisdiction of such Commission, which had heard and denied the claim. To this plea plaintiff demurred on the ground that the holding of the Commission that plaintiff's decedent was not killed as a result of an accident arising out of and in the course of his employment was merely a finding that the Commission was without jurisdiction of the matter, and that the present action for the wrongful death of decedent, which did not arise out of and in the course of the employment, was not barred by the provisions of the Workmen's Compensation Act. Defendant argued in the Supreme Court of Appeals that the evidence adduced before the Industrial Commission showed conclusively that the death of decedent was caused by his own negligence, and hence would bar a recovery in the present action. The trial court overruled plaintiff's demurrer, sustained the pleas and entered final judgment dismissing the present action.
Held: That the contention of defendant was not sound, since whether death was caused by the negligence of decedent was a matter of defense on the merits in the present controversy and was not before the Supreme Court of Appeals whose concern was whether the Industrial Commission had adjudicated that decedent's negligence barred the present action.
12. ESTOPPEL — Inconsistent Positions — In Course of Suit or Series of Suits. — A party is forbidden to assume successive positions in the course of a suit, or series of suits, in reference to the same fact or state of facts, which are inconsistent with each other, or mutually contradictory.
13. ESTOPPEL — Inconsistent Positions — Bringing Suit in Wrong Forum. — One who has brought his suit in the wrong forum, where it has been dismissed for lack of jurisdiction, is not precluded from thereafter proceeding in the proper forum on the theory that the subsequent action involves a change of position.
14. DEATH BY WRONGFUL ACT — Estoppel — Prior Dismissal by Industrial Commission for Want of Jurisdiction — Case at Bar. — In the instant case, an action to recover for death by wrongful act, defendant contended that since plaintiff had asserted before the Industrial Commission of Virginia that the death of decedent was due to an accident which arose out of and in the course of his employment and was compensable under the Workmen's Compensation Act, plaintiff was estopped in the present action to take the inconsistent position that it did not arise out of and in the course of the employment, was not compensable under the Act, and hence that plaintiff was free to pursue common-law remedies against the employer.
Held: That plaintiff was not estopped to proceed in the proper forum because a remedy in the wrong forum had been improperly pursued and the cause of action dismissed for want of jurisdiction.
15. WORKMEN'S COMPENSATION — Effect of Acts on Employee's Other Remedies — Effect of Filing Claim Which Is Dismissed. — The filing of a claim for compensation under the Workmen's Compensation Act, which is dismissed because not within the purview of the Act, does not estop the employee from thereafter pursuing his common-law remedy, if any, against the employer.
Error to a judgment of the Circuit Court of Russell county. Hon. Ezra T. Carter, judge presiding.
The opinion states the case.
A. T. Griffith and Erma Griffith Greenwood, for the plaintiff in error.
H. M. Bandy, H. M. Bandy, Jr., Joseph S. Gillespie and R. O. Crockett, for the defendant in error.
Bessie Griffith, administratrix of the estate of Douglas Griffith, deceased, filed a notice of motion for judgment against Raven Red Ash Coal Company, Inc., hereinafter called the defendant, to recover damages for the alleged wrongful death of Douglas Griffith. In substance, the notice of motion alleges that the defendant is the owner and operator of a coal mine in Russell county; that it owed its invitees the duty of keeping the mine in a reasonably safe condition, and to that end should have installed therein the necessary devices or equipment to prevent the accumulation of high explosive gases known to it to be dangerous; that on March 1, 1940, the defendant invited the plaintiff's decedent and other persons to enter the mine "in preparation for engaging in work and employment in mining and removing coal therefrom"; and that...
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