Griffith v. Raven Red Ash Coal Co. Inc

• Decision Date: 08 June 1942
• Citation: 20 S.E.2d 530,179 Va. 790
• Court: Virginia Supreme Court
• Parties: GRIFFITH. v. RAVEN RED ASH COAL CO., Inc.

20 S.E.2d 530

179 Va. 790

GRIFFITH.

v.RAVEN RED ASH COAL CO., Inc.

Supreme Court of Appeals of Virginia.

June 8, 1942.

Error to Circuit Court, Russell County; Ezra T. Carter, Judge.

Notice of motion for judgment by Bessie Griffith, administratrix of the estate of Douglas Griffith, deceased, against Raven Red Ash Coal Company, Incorporated, to recover damages for the death of Douglas Griffith. To review a judgment dismissing the notice of motion for judgment, plaintiff brings error.

Reversed and remanded for a new trial.

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

A. T. Griffith and Erma Griffith Greenwood, both of Lebanon, for plaintiff in error.

H. M. Bandy and H. M. Bandy, Jr., both of Norton; and Joseph S. Gillespie and R. O. Crockett, both of Tazewell, for defendant in error.

EGGLESTON, Justice.

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 while the plaintiff's decedent was at a place in the mine where he had the right to be for this purpose, due to the negligence of the defendant, its failure to provide and operate the necessary devices and equipment therein, and its failure to keep the premises reasonably safe for the protection of the plaintiff's intestate and the other invitees therein, there was an accumulation of gas in the mine which became ignited and exploded, thereby causing the instant death of the plaintiff's decedent.

The defendant demurred to the notice of motion for judgment and filed separate pleas of res judicata and estoppel which challenged the jurisdiction of the lower court to proceed with the present action at law.

The plea of res judicata alleged that at the time of the matters complained of the plaintiff's decedent was in the employment of the defendant; that the defendant "had in its employ more than eleven persons and was operating under and in compliance with the terms and provisions of the Virginia Workmen's Compensation Act"; that a claim was filed before the Industrial Commission of Virginia for an award of compensation for the death of the plaintiff's decedent; that the matter was within the exclusive jurisdiction of the Industrial Commission of Virginia, which heard and denied the claim for an award of compensation; and that since the matter had been "heretofore finally determined by the said Industrial Commission of Virginia" on the merits, the present action could not be maintained.

The plea of estoppel, after alleging that at the time of his death the plaintiff's decedent was in the employment of the defendant, that the latter was operating under the terms and provisions of the Virginia Workmen's Compensation Act, that a claim for an award of compensation had been filed with and denied by the Industrial Commission of Virginia, further alleged that the administratrix plaintiff was estopped to maintain the present action at law because her claim here was inconsistent with the position which she had taken, through her privies, in the former proceeding before the Industrial Commission.

Attached to the pleas was a duly authenticated copy of the record of the proceeding before the Industrial Commission, from which it appears that the Raven Red Ash Coal Company, Inc., and its insurance carrier, contested the right to an award under the Workmen's Compensation Act on the sole ground that the fatal accident did not arise out of and in the course of the employment of the decedent. The Industrial Commission upheld this contention and dismissed the proceeding.

To each of the pleas the plaintiff demurred on the grounds, (1) that the holding of the Industrial Commission was not res judicata in the present action, that its holding that the 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 (2) that the plaintiff's right of action at law for the wrongful death of the decedent which did not arise out of and in the course of his employment, was not barred by the provisions of the Workmen's Compensation Act.

The trial court overruled the plaintiff's demurrers, sustained the pleas, and entered a final judgment dismissing the notice of motion for judgment. The matter is before us on a writ of error awarded to the plaintiff below.

The first question we have to decide is whether the Workmen's Compensation Act (Michie's Code 1936, § 1887(1), et seq. Acts 1918, ch. 400, p. 637, as amended), under which the employer and employee were operating, bars an action at law for the injury or death of an employee due to the negligence of the employer, wheresuch injury or death is not due to an accident arising out of and in the course of the employment and hence is not compensable under the Act.

The defendant in error contends that such action at law has been extinguished by sections 12 and 4 of the Act.

The pertinent part of section 12 of the Act (Michie's Code 1936, § 1887(12), as amended by Acts 1920, ch. 176, p. 256; Acts 1924, ch. 318, p. 478; Acts 1930, ch. 158, p. 405; Acts 1932, ch. 279, p. 485; Acts 1936, ch. 369, p. 591), reads as follows:

"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, his personal representative, parents, dependents or next of kin, at common law or otherwise on account of such injury, loss of service or death."

Section 4 of the Act, Michie's Code 1936, § 1887(4), provides that every employer and employee "shall be presumed to have accepted the provisions of this act respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment, and shall be bound thereby, " unless prescribed notices are given.

These sections should, of course, be interpreted in the light of the purpose of the Act as a whole and its other provisions.

Section 2 of the Act, Michie's Code 1936, § 1887(2), contains this statutory definition:

"(d) 'Injury' and 'personal injury' shall mean only injury by accident arising out of and in the course of the employment * * *"

The death of an employee, in order to be compensable under the Act, must be from an accident arising out of and in the course of the employment. Kent v. Virginia-Carolina Chemical Co, 143 Va. 62, 65, 129 S.E. 330. See, also, section 4 of the Act, Michie's Code 1936, § 1887(4), supra.

The Act provides a system of compensation to an employee or his dependents for injury or death from injury arising out of and in the course of the employment, without regard to fault as the cause of such injury or death. Although in derogation of the common law, it is highly remedial and should be liberally construed in favor of the workman. City of Alexandria v. Mc-Clary, 167 Va. 199, 202, 188 S.E. 158, 160, and cases there cited.

We should remember, too, that "the common law is not to be considered as altered or changed by statute unless the legislative intent be plainly manifested". Norfolk & Western R. Co. v. Virginian Railway Co, 110 Va. 631, 646, 66 S.E. 863, 868.

Construed in the light of these principles and the provisions of the Act to which we have referred, we think that it is manifest that it was the purpose of section 12, Michie's Code 1936, § 1887(12), to exclude the common-law remedies of an employee, his personal representative, etc, only for such injury or death as is covered by section 2, Michie's Code 1936, § 1887(2) (d)--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.

Section 12, Michie's Code 1936, § 1887 (12), deprives the employee or his personal representative of a common-law right of action for damages against the employer in a particular class of cases, that is, where the injury or death is from an accident arising out of and in the course of the employment, because the Act gives to the employee or his dependents in lieu thereof the right to an award of compensation. But to adopt the contention of the defendant in error would deprive the employee or his dependents of a long existing common-law right of action in a large number of cases without giving them anything in return therefor. Carried to its logical conclusion, an employee, merely because of the relationship existing between him and his employer, would have no remedy whatever for an injury sustained while he was off duty and far removed from the place of employment. An employee, working in Norfolk on weekdays, injured on Sunday on the highway, through the negligence of the employer, would be entitled neither to compensation under the Act nor damages at law. He would be remediless.

Such a result would be to construe the Act strictly against the employee and not in his favor. Moreover, it would be violative of the principle that an existing common-law remedy is not to be takenaway by a statute unless by direct enactment or...