Peanut City Iron & Metal Co. v. Jenkins

• Citation: 207 Va. 399,150 S.E.2d 120
• Court: Supreme Court of Virginia
• Decision Date: 09 September 1966
• Parties: PEANUT CITY IRON AND METAL CO., Inc. and Bituminous Casualty Corporation v. Willie JENKINS.

Page 120

150 S.E.2d 120

207 Va. 399

PEANUT CITY IRON AND METAL CO., Inc. and Bituminous Casualty Corporation v. Willie JENKINS.

Supreme Court of Appeals of Virginia.

Sept. 9, 1966.

William E. Baggs, Norfolk (Breeden, Howard & MacMillan, Norfolk, on brief), for appellants.

William F. Davis, Suffolk (M. Anderson Maxey, Suffolk, on brief), for appellee.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

SNEAD, Justice.

Under the Workmen's Compensation Act the Industrial Commission made an award to Willie Jenkins, claimant, for injuries he sustained 'arising out of and in the course of his employment' with Peanut City Iron and Metal Co., Inc. The company and its insurer, Bituminous Casualty Corporation, appellants, defended the claim on the ground that Jenkins had been guilty of 'wilful misconduct' (Code, § 65--35) ¹ by violating a well-known oral safety rule of his employer, which misconduct was the proximate cause of his injuries. They appealed from the award made by the Commission.

The record discloses that claimant had been employed by Peanut City Iron and Metal Co., Inc. for about 9 years and that for approximately 5 years preceding the mishap his main job had been the 'cutting up' of junk automobiles for salvage purposes. The procedure generally followed by claimant was to set an automobile on fire 'to burn the upholstery and things like that', to let the vehicle cool, and then to dismantle it with a blow torch.

There was an oral work rule of the company that before an automobile was dismantled with a blow torch air holes were to be made in its gas tank by means of an axe or pick. The rule was promulgated 'because gas is mighty dangerous' and because punctured gas tanks merely burn and do not explode. The company provided the tools with which the holes were to be made and placed them in the area where the cars were dismantled.

The work rule was 'preached' to claimant and his fellow workers 'all the time'. '(E)verybody in the yard' knew of it. Claimant was aware of the rule and the reason for its existence. He had been reminded of it 'many, many times', but on a number of occasions the company's president, J. W. Ginsburg, who was at the yard 'all the time', observed him cutting up an automobile without first making holes in its gas tank as required by the rule. On each occasion Ginsburg would 'bawl him out' and require him to cut holes in the gas tank before continuing the dismantling operation with the blow torch. However, Ginsburg did not dock claimant's salary or suspend him from work. Approximately a week before the accident occurred Ginsburg was claimant cutting up a car without first puncturing its gas tank. Ginsburg testified:

'I saw him cutting a car, I asked him, 'Willie, do you have a hole in that tank?' And rougher words than that actually and he said, 'No, sir.' I said, 'Get off this minute and put a hole in the tank.' I said, 'One of these days you are going to get--somebody is going to get hurt, you will know what I'm talking about,' * * *.'

Ginsburg further testified that on that occasion he said to claimant, 'If you don't do what I tell you, I'm going to let you go.'

On January 19, 1965, the day of the mishap, claimant was engaged in his main duty of dismantling automobiles with a blow torch. He was assisted by Ludie Beale, a fellow employee. He sent Beale to obtain some fuel oil so that the vehicles could be set on fire. Beale returned with the oil, and one car was set ablaze. When the fire had burned out and the car had sufficiently cooled to permit claimant to walk on top of it, he began to cut up the vehicle with a blow torch. Beale offered to punch holes in the car's gas tank, but claimant told him that he would make the holes and directed Beale to secure the 'pole truck' (a truck with a small crane mounted upon it). Claimant then proceeded to cut the chassis from the body of the car with the blow torch. Beale returned with the truck, backed it up to the automobile, and at claimant's direction attempted to lift the chassis from the body. The chassis 'wouldn't come off', however, because one bolt near the middle, about 5 to 7 feet from the gas tank, held it to the body.

Beale set the chassis down, and the car was turned over on its side. Claimant 'got on the ground * * * on the tank side' to cut the bolt with the blow torch. During the process the gas tank exploded 'beside the seam' throwing 'gas or something' on him, setting fire to his clothing, and burning his chest, right arm, and right shoulder. According to claimant, a spark from the blow torch 'must have got in the tank.'

Claimant testified that he made two holes in the gas tank before he 'started cutting' with the blow torch, but there was abundant testimony as well as physical evidence to the contrary. In its findings of fact and conclusions of law, the Commission found that claimant 'knew the oft-repeated work rule to always puncture a gas tank several times for air holes with an axe or pickaxe provided before dismantling a car by using a blow torch'; that he did not make holes in the tank on the car involved, and that his failure to do so was the cause of the explosion and his injuries. The Commission also found that the oral work rule was reasonable; that it existed for claimant's protection; that claimant's employer had discovered claimant violating the rule on several occasions; that claimant had been admonished for failing to follow the specified procedure, and that upon each reprimand claimant would immediately cut holes in the tank of the car he was dismantling.

However, the Commission further found that there was no fixed penalty for a violation of the work rule; that no punishment or penalty 'by way of reduction of pay, suspension from work', or 'otherwise' had ever been imposed upon claimant or any other employee for known breaches of the rule, and that 'the most that the employer states was ever done is that on one occasion he advised the claimant that 'If you don't follow this (procedure) we will have to let you go."

In concluding that claimant was entitled to compensation, the Commission stated in part:

'* * * (T)he aforesaid defense of violation of a work rule is negated and rendered inapplicable as a defense herein in that evidence of repeated known violations by this employee in the past were without punishment or penalty of any kind except oral reprimand; and it is so found.'

The dominant question presented by the assignments of error is whether claimant's employer strictly enforced the oral work rule so as to permit it to successfully defend the claim on the ground that claimant was guilty of wilful misconduct in violating the rule. Appellants concede that there was no fixed penalty for a violation of the rule and that no employee had been discharged or had his salary reduced because of his breach of the rule, but they contend that whether the rule was strictly enforced was a mixed question of law and fact. They say that what constitutes 'strict enforcement' is a question of law; that whether the evidence in a given case supports 'strict enforcement' is a question of fact, and that the Commission's ruling that the failure on the part of the employer to inflict punishment or a penalty for violation of the rule negates and renders inapplicable the defense of violation of the work rule was not a factual finding but was its own definition of strict enforcement.

Claimant, on the other hand, concedes that the evidence supports the Commission's finding that he violated the oral work rule, but he takes the position that the rule had no validity because it was not strictly enforced by his employer; that the question of whether it was strictly enforced was one of fact for the Commission to decide; that the Commission decided the question adversely to appellants, and that the Commission's factual findings are conclusive and binding upon this court.

We agree with claimant that in order for appellants to prevail upon the defense of 'wilful misconduct', on the ground that claimant intentionally violated a wellknown safety rule, they had to show that the rule was strictly enforced by the employer. Williams v. Benedict Coal Corp., 181 Va. 478, 482, 25 S.E.2d 251; 21A M.J., Workmen's Compensation, § 36, p. 62; 99 C.J.S. Workmen's Compensation § 261, p. 905. However, we disagree with claimant's contention that the question of whether the rule was strictly enforced was only one of fact for the Commission to decide. We think that it was a mixed question of law and fact, and '(i)t is well-settled that conclusions of the Commission upon questions of law, or mixed questions of law and fact, are not binding on us * * *.' Brown v. Fox, 189 Va. 509, 517, 54 S.E.2d 109, 113. A mixed conclusion of law and fact is properly reviewable by this court. Norfolk & Washington Steamboat Co. v. Holladay, 174 Va. 152, 157, 5 S.E.2d 486; Conner v. Bragg, 203 Va. 204, 207, 123 S.E.2d 393.

It appears from a reading of the Commission's opinion that it held, as a matter of law, that the work rule was not strictly enforced because no punishment or penalty was assessed against claimant for his known violations of it. For reasons stated infra, we are of opinion that the standard of strict enforcement applied by the Commission was improper and that the Commission's holding based thereon was erroneous.

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