Hurd v. Hurt

• Court: Virginia Supreme Court
• Writing for the Court: HUDGINS, Justice
• Citation: Hurd v. Hurt, 161 Va. 800, 172 S.E. 289 (1934)
• Decision Date: 11 January 1934
• Parties: HURD. v. HESSE & HURT et al.

172 S.E. 289

HURD.

v.HESSE & HURT et al.

Supreme Court of Appeals of Virginia.

Jan. 11, 1934.

Error to Industrial Commission.

Proceedings under the Workmen's Compensation Act by R. C. Hurd, employee, opposed by Hesse & Hurt, employer, and the Travelers' Insurance Company, insurer. To review an award of the commission in favor of the employer and insurer, the employee brings error.

Affirmed.

Argued before CAMPBELL, O. J., and HOLT, EPES, HUDGINS, GREGORY, and BROWNING, JJ.

Dillard, Moomaw & Dillard, of Roanoke, for plaintiff in error.

M. Wallace Moncure, Jr., and R. E. Cabell, both of Richmond, for defendants in error.

HUDGINS, Justice.

At the threshold of this case we are met with a motion to dismiss because a copy of the petition was not served upon the insurance carrier in accordance with rule II (a). During the oral argument it was admitted that a copy of the petition had been served upon the employer. The question raised by this motion is fully discussed in the case of Clarence Smith v. Commonwealth, 172 S. E. 286, in an opinion announced at this term of court, and for the reasons there stated the motion is overruled.

We next come to consideration of the case upon its merits. The facts are simple and are not in dispute.

Claimant was engaged in painting furniture for Hesse & Hurt. This he did with a small spray gun which operated easily. The spray was released by pressure from the thumb on a button. He began work late in the afternoon of October 12, 1932, and worked for about half an hour on that day and from 8 to 12 on the forenoon of the day following. Some two hours before he completed the job he noticed that his thumb was a little red. He testified that: "Along about noon * * * as I was finishing up this job I noticed that the end of my thumb was a little sore. There was no break in (the) skin nor any blister. I had not struck it against anything but had bruised it toy constant pressure over a period of several hours."

On the evening of the 13th he called his employer's attention to his thumb, but said he did not think it amounted to anything, and on the 17th he went to a doctor, who lanced it. A bone felon developed, and it was again lanced. His family physician said that the trouble either came from a bruise or from an infected abrasion. There is nothing to indicate that it came from an abrasion; claimant himself stated that it came from a bruise, his thumb did not slip, and he was conscious of no sudden incident which occasioned his trouble.

The commission was of opinion, Commissioner Mizer dissenting, that there was no accident such as is defined by the statute.

The meaning of the term "injury by accident" was construed in the recent case of Big Jack Overall Co. v. Bray, 161 Va. _, 171 S. E. 686, 690, where, quoting...