Mann v. City Of Lynchburg

• Decision Date: 17 March 1921
• Citation: 106 S.E. 371
• Court: Virginia Supreme Court
• Parties: MANN. v. CITY OF LYNCHBURG.

106 S.E. 371

MANN.

v.CITY OF LYNCHBURG.

Supreme Court of Appeals of Virginia.

March 17, 1921.

Questions Certified from the Industrial Commission.

Claim by Willie H. Mann against the City of Lynchburg or the Commonwealth of Virginia for compensation under the Workmen's Compensation Act for the death of Lee Arthur Mann. On questions certified by the Industrial Commission. Questions answered, and claimant denied compensation.

N. C. Manson, of Lynchburg, John R. Saunders, Atty. Gen., and J. D. Hank, Jr., Asst. Atty. Gen., for city of Lynchburg and the Commonwealth.

PER CURIAM. The Industrial Commission of Virginia, pursuant to the provision of section 61 of the Workmen's Compensation Act (Acts 1918, p. 637), has certified to this court for its decision certain questions of law arising in the above entitled proceeding.

We quote as follows from the certificate of the commission:

"The claimant, Willie H. Mann, in her own right and in behalf of her two infant children, Bernard Mann, of the age of 13 years, and Arthur Mann, of the age of 10 years, has filed her application for hearing before the Industrial Commission of Virginia, setting up the claim of herself and infant children as dependents of her husband, Lee Arthur Mann, a policeman of the city of Lynchburg, who was killed in the line of duty on the 25th day of March, 1920.

"In said application claimant asks that the compensation be paid as provided by the statute, either by the city of Lynchburg or the commonwealth of Virginia, as liability under the statute may be determined.

"The facts of the case may best be stated in the agreed statement of facts, which is in the words and figures following to wit:

" 'Agreed Statement of Facts.

" 'I. The claimant, Willie H. Mann, was the lawful wife of Lee Arthur Mann, who died in the city of Lynchburg, Va., on the 26th day of March, 1920, from the effects of a pistol shot wound in the head inflicted by John H. Williams (colored) on the night of the 25th of March, 1920.

" 'II. The deceased, Lee Arthur Mann, left surviving him, as his only heirs at law and distributees, his widow, the aforesaid Willie H. Mann, and their two children, to wit, Bernard Mann, who was born on the 9th day of December, 1907, and is therefore aged 12 years, and Arthur Mann, who was born on the 12th day of November. 1910, and who is therefore aged 9 years. The said widow and children of the deceased were entirely dependent upon him for support.

" III The deceased was in every respect a duly and lawfully appointed, qualified and constituted policeman for the city of Lynchburg, Va.

" 'IV. The deceased in the performance of his duty as a policeman of the city of Lynchburg, along with a fellow policeman of the said city, sought on the night of the 25th of March, 1920, to place the aforesaid John H. Williams under arrest, upon a charge of carrying a concealed weapon and upon a suspicion, which has since been confirmed by his own confession, that he was wanted in the state of South Carolina for the crime of murder. The said John H. Williams in resisting the said arrest inflicted a pistol shot wound upon the deceased, from the effects of which the latter died on the following day.

" 'V. The arrest of the said John H. Williams sought to be made by the deceased and his fellow officer was in every respect a lawful arrest, made in a lawful and proper manner by proper officers.

" 'VI. The average weekly wage was $26.25, and he was paid monthly by the city of Lynchburg.

" 'VII. The method of appointing policemen for the city of Lynchburg, and which was followed in the appointment of the deceased, is set forth in the charter of the city of Lynchburg. (See Acts of the General Assembly of 1918, page 238, and special section 10 of chapter VI of the charter, on pages 251 and 252 of said Acts.)

" 'VIII. The duties of the members of the police force of the city of Lynchburg, including those of the deceased, are prescribed by law, and include the enforcement within the said city of the laws of the commonwealth of Virginia and the ordinances of the city of Lynchburg, and the detention and arrest of offenders thereof. (See section 2991, Code of Virginia for 1919; section 10 of chapter VI of the charter of Lynchburg, supra.) The members of the Lynchburg police force were also made conservators of the peace under the charter of the city of Lynchburg. (See section 4798 of Code of Virginia, 1919.)'

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"The city of Lynchburg contends that the killed policeman was not 'the agent, employee or servant' of the city of Lynchburg, but was 'the agent, employee or servant' of the state of Virginia, and that under the terms of the Workmen's Compensation Act the state is the true employer and is alone liable to pay the compensation stipulated to be paid under the terms of the act to the claimants as dependents of the said Lee Arthur Mann.

"The contention of the state is that the city of Lynchburg is by the clear intendment of the Workmen's Compensation Act alone liable, as the employer of the killed policeman, to pay the compensation therein provided to the said dependents.

"The questions of law which are here respectfully certified to this honorable court for its decision and determination are:

"I. Was the city of Lynchburg the employer of the policeman, Lee Arthur Mann, at the time of his death, and is it, as such, liable to pay the compensation to the claimants in the act provided? or

"II. Was the commonwealth of Virginia the employer at said time, and as such liable to pay said compensation?"

From the briefs of counsel for the city of Lynchburg and the commonwealth of Virginia it appears to be agreed that no question is to be raised by either of the defendants as to the right of the claimant, Willie H. Mann, to recover from one or the other. The necessary result Is that for the purposes of this case both defendants concede that Policeman Mann was an employee either of the city or the state, within the meaning of the statute. Upon such concession, eliminating any consideration of the statutory definition of an employee, we answer that in our opinion, as between the two defendants, the city of Lynchburg, as the party "using the services for pay, " would be liable for the compensation conceded to be due from one or the other of the parties.

If this were a question between private persons or corporations, we might well stop where the briefs of counsel stop, and refrain from passing upon the question as to whether either of the defendants are liable for the compensation claimed. The question, however, is one of a public nature, and we feel that we should answer it as fully as if it had been submitted to us without the limitation above indicated.

Section 2 of the act, so far as pertinent, is as follows:

"(a) 'Employers' shall include the state and any municipal corporation within the state or any political division thereof, and any individual, firm, association or corporation, or the receiver or trustee of the same, or the legal representative of a deceased employer, using the service of another for pay. If the employer is insured it shall include his insurer so far as applicable.

"(b) 'Employee' shall include every person, including a minor, in the service of another under any contract of hire or apprenticeship, written or implied, except one whose employment is not in the usual course of the trade, business occupation or profession of the employer. Any reference to an employee who has been injured shall, when the employee is dead, include also his legal representatives, dependents and other persons to whom compensation may be payable, "

While it is plainly provided in the act that the term " 'employers' shall include the state and any municipal corporation within the state, " it by no means follows that all persons in the service of the state, or of the municipal corporations therein, are entitled to thebenefit of the act; for example, the Governor, Attorney General, members of the State Corporation Commission, judges, mayors, and city managers are all in a sense servants of the state or city, but the act plainly does not extend to any of these persons, and they do not fall within the definition of the statute, which provides that—

" 'Employee' shall include every person, including a minor, in the service of another under any contract of hire or apprenticeship, written or implied."

The statute is to be liberally construed to the end that its wise and humane purpose may be advanced; but we cannot extend its provisions by construction, so as to cover persons or occupations not within its scope and intent.

The act, as its title shows, relates to industrial accidents, and its well-known purpose was to substitute for the unsatisfactory common-law remedies a speedier and simpler and more equitable form of relief for personal injuries sustained by persons engaged in hazardous occupations. It would seem clear from the history and purposes and general provisions of the act that the Legislature did not have in mind as beneficiaries any other persons than such as are commonly understood as falling within a contractual relationship of master and servant. It often happens that cities and towns employ large forces of men in connection with municipal undertakings, such as the construction of sewers, the building of streets, the operation of rock quarries, and other similar and more or less hazardous occupations akin to those undertaken by individuals and industrial corporations. The Legislature undertook to make an improvement upon the remedies hitherto existing in cases of employees receiving personal injuries, and who might or might not, according to the particular facts of the case, have a cause of action against the employer on the ground of negligence or breach of duty, and manifestly the idea was that this remedy should be provided for those who theretofore stood in such a relationship as that there might be in cases of negligence a liability on the employer. Griswold v. Wichita, 99...