Kent v. Va.-carolina Chem. Co

• Decision Date: 17 September 1925
• Citation: 129 S.E. 330
• Parties: KENT. v. VIRGINIA-CAROLINA CHEMICAL CO.
• Court: Virginia Supreme Court

129 S.E. 330

KENT.

v.VIRGINIA-CAROLINA CHEMICAL CO.

Supreme Court of Appeals of Virginia.

Sept. 17, 1925.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Course of Employment.]

Appeal from Industrial Commission.

Proceeding under the Workmen's Compensation Act by Mrs. John B. Kent for death of John B. Kent, her husband, claimant, opposed by the Virginia-Carolina Chem-teal Company, employer. From a judgment of the Industrial Commission denying compensation, claimant appeals. Affirmed.

O. B. Harvey, of Clifton Forge, for appellant.

J. D. Cronmiller and R. E. Cabell, both of Richmond, for appellee.

CHICHESTER, J. This is an appeal from a judgment of the Industrial Commission of Virginia rendered on January 19, 1925, by which compensation was refused appellant for the death of her husband, John B. Kent

The facts of the case are agreed. Kent, at the time of his death, and for about 7 years theretofore, was employed as night watchman, at their plant in Lynchburg, Va., by the Virginia-Carolina Chemical Company.

On the morning of March 31, 1924, having completed his work at the plant, he started for his home in the city of Lynchburg. Fifteen minutes after leaving the plant while he was walking over what is known as the lower island bridge, he was struck by a Norfolk & Western passenger train and killed. This bridge is about 100 feet long, is a single track bridge, and spans the James river.

The home of the deceased was on one side of the James river and the plant of the defendant company was on the other, about 3 miles apart.

This route, over the Norfolk & Western Railroad bridge from the home of the deceased to the plant, was found by the commission to be the shortest and most practical route, and it was the route usually, if not always, taken by the deceased. At each end of the bridge there was a large sign warning people not to trespass.

There were two other possible ways. One is spoken of as the county road route, and is a half mile longer than the route across the Norfolk & Western bridge. The other is called the river road and is practically the same distance as the route by the Norfolk & Western bridge, but this latter route appears to have been subject to overflow at times.

The superintendent of the plant stated that he knew Kent had used the bridge route, but he had never objected to his using it.

The company furnished no means of conveyance to and from the plant for employees living in Lynchburg, and did not pay them for the time consumed in going home or coming to the plant.

The case was first heard before the chairman of the commission at Lynchburg, who found that the deceased met his death by "accident arising out of and in the course of his employment, " and the applicant was allowed compensation.

An appeal was taken to the full commission and a hearing in Richmond resulted in a refusal of the claim. From the final judgment, refusing the claim, an appeal was granted by this court.

There was an able opinion filed in the case by Commissioner Park P. Deans maintaining the majority finding, and an able dissenting opinion by Chairman Boiling H. Handy.

Under section 2 (d) of the Virginia Workman's Compensation Act (Laws 191S, c. 400), the accident resulting in injury or death of an employee must arise out of and in the course of the employment, before compensation can be awarded.

The test, we think is whether the general character of the undertaking in which the deceased was engaged at the time of the accident arose out of and in the course of his employment.

Under the facts of this case, it does not appear that there should be any great difficulty in answering this question, but, under the rule of liberal construction of statutes in this class of cases, the courts have allowed compensation in cases very closely analogous to the instant case, and therefore the case here is not without difficulty.

If we bear in mind, however, that under the Virginia Act the accident must both "arise out of" and "in the course of" employment, and if we further bear in mind these salient features of this case:

(1) That deceased was not at the plant or engaged in work for his employer at the time of the accident;

(2) That he was on his way to his home, had left the plant 15 minutes before the accident, and had proceeded on his way for a half mile;

(3) That he was walking by a way of his own choosing and not by one provided by his employer;

(4) That this way was not the sole or exclusive way of ingress to, and egress from, the plant;

(5) That he was not charged with any duty or task in connection with his employment on his way home which carried him over this route—

Can the accident which resulted in the death of John B. Kent be regarded as meeting both of the conditions of the Virginia statute? Unless we are prepared to say that going to and returning from work meets both of these conditions, then we must answer the question in the negative.

The general rule, well stated in Clapp's Parking Station v. Ind. Acc't Com., 51 Cal. App. 624, 197 P. 369, is:

"That an employee going to or from the place where his work is to be performed is not engaged in performing any service growing out of and incidental to his employment."

The facts agreed upon here and set out above show that the deceased had left his employer's premises and was going home from his work.

The cases indicate that there are three exceptions to the general rule above stated and only three.

First. Where in going to and from work the means of transportation is provided by the employer or the time consumed is paid for or included in the wages.

Second. Where the way used is the sole and exclusive way of ingress and egress, with no other way, or where the way of ingress and egress is constructed by the employer.

Third. Where the employee on his way to or from work is still charged with some duty or task in connection with his employment.

It cannot be successfully contended that the case we are here reviewing comes literally within any of these exceptions.

This general rule, with the exceptions stated, is not contested, but it is sought to come within the second exception by implication; that is, the contention is that it should be held that where employees regularly and constantly and over a period of years use a certain method or way of approach to the place of employment with the knowledge of the employer, and that when the way so used is the best way, or most practical way of approach, although there are other ways which could be used, such route really becomes a part of the contract of employment, and that the...