Scott v. Willis

• Decision Date: 22 March 1928
• Parties: GARRETT W. SCOTT, EMPLOYER, AND UNITED STATES FIDELITY AND GUARANTY COMPANY, INSURER, v. CHARLES E. WILLIS.
• Court: Virginia Supreme Court

Page 260

150 Va. 260

GARRETT W. SCOTT, EMPLOYER, AND UNITED STATES FIDELITY AND GUARANTY COMPANY, INSURER, v. CHARLES E. WILLIS.

Supreme Court of Virginia, Richmond.

March 22, 1928.

Absent, Burks, J.

1. APPEAL AND ERROR — Workmen's Compensation Act — Award of Industrial Commission — Right of Petitioner to Transcript of Evidence before Commission — Case at Bar. — On an appeal from an award of the Industrial Commission, where the evidence is conflicting, the transcript of the evidence is no part of the record and all a petitioner is entitled to is that part of the record showing the findings of fact, but where an award of the Industrial Commission is attacked on the ground that the evidence showed that the injury suffered by the claimant did not arise out of and in the course of his employment, there being no conflict in the evidence, a question of law is raised, and the petitioner has the right to have the evidence certified, so that this question of law may be determined.

2. APPEAL AND ERROR — Workmen's Compensation Act — Award of Industrial Commission — Right of Petitioner to Transcript of Evidence before Commission. — Where the only complaint against an award of the Industrial Commission is that the evidence is insufficient to support the finding of the Industrial Commission, there being no conflict in the evidence, a question of law is raised, and petitioner for a writ of error is entitled to have the evidence certified.

3. WORKMEN'S COMPENSATION ACT — Award of Industrial Commission — Evidence Insufficient to Support Award. — If there be no evidence upon which an award can be legally based, then clearly an award which is unsupported by evidence is an illegal award.

4. WORKMEN'S COMPENSATION ACT — Course of Employment — Going to and Returning from Work — Employer Contracting to Transport Workman. — An employee while on his way to work is not in the course of his employment. But where the workman is employed to work at a certain place, and as a part of his contract of employment there is an agreement that his employer shall furnish him free transportation to or from his work, the period of service continues during the time of transportation, and if an injury occurs during the course of transportation it is held to have arisen out of and in the course of the employment.

5. WORKMEN'S COMPENSATION ACT — Going to and Returning from Work — Employer Contracting to Transport Workman — Case at Bar. — In the instant case, a proceeding under the workmen's compensation act, the employer had contracted to transport employee to and from work. The employer while conceding that if the injury had occurred to the claimant during the journey and while the truck which was transporting him was in motion, his injury would have been compensable, contended that because claimant had alighted on the highway, the obligation of the employer ceased the instant he reached the ground.

Held: That to sustain the employer's contention would be too narrow a construction of the act.

6. WORKMEN'S COMPENSATION ACT — Going to and Returning from Work — Employer Contracting to Transport Workman — Case at Bar. — In the instant case employer had contracted to transport his employee to and from his work. The employee was injured when he stepped from the truck to the highway which he had to cross to reach his home.

Held: That the journey of the employee had not ended, and that the transportation to his home was not completed until he reached a point which exempted him from the risks incident to that particular journey.

7. WORKMEN'S COMPENSATION ACT — Going to and Returning from Work — Employer Contracting to Transport Workman — Case at Bar. — In the instant case an employer contracted to transport his employee to and from his work. The employee was injured returning to his home from work. The truck upon which he was riding stopped on the right-hand side of the road. Claimant had to cross the road to reach his home. He testified that he alighted and started to cross the road and when he got two steps on the macadam was struck by an approaching automobile. He also testified that he "had just got off the truck and taken about six steps around the rear end" of it when he was hit. Defendant laid emphasis on claimant's testimony that he had got about two steps on the macadam when he was struck. But the two steps about which claimant spoke might fairly be construed to be two steps from the edge of the right-hand side of the highway behind the truck. The driver of the automobile which struck claimant testified "he just stepped off, I couldn't tell you how far he was."

Held: That claimant's journey had not ended; that he was in the act of leaving the vehicle of his employer, seeking a safe place on the sidewalk, and that the injury was so close in time and space as to be an incident of the transportation, and hence that it arose out of and in the course of claimant's employment.

Error to an award of the Industrial Commission of Virginia.

The opinion states the case.

Sinnott, May & Leaman and Roger B. Copinger, for the plaintiff in error.

Sam N. Hurst, for the defendant in error.

PRENTIS, P., delivered the opinion of the court.

An award in favor of the employee, Willis, is here attacked upon the ground that the evidence shows that the injury suffered by the claimant did not arise out of and in the course of his employment.

1, 2 One of the questions raised in the argument is as to whether the petitioners were entitled to a transcript of the evidence before the commission, as a part of the record. The statement is made, relying upon Code, section 1887(61), as construed in Stonega Coal & Coke Co. Sutherland, 136 Va. 489, 118 S.E. 133, and Burleson Coal Co., 145 Va. 79, 133 S.E. 663, that the commission contends that the transcript of the evidence is no part of the record, and that all the petitioners were entitled to was that part of the record showing the findings of fact. This is doubtless true, where the evidence is conflicting, but in cases like this, where the only complaint is that the evidence is insufficient to support a finding, there being no conflict, a question of law is raised. The petitioners contend that they have the right to have the evidence certified, so that this question of law may be determined.

3 We agree with this contention of the petitioners, because if in fact there be no evidence upon which an award can be legally based, then clearly an award which is unsupported by evidence is an illegal award. It is almost, if not quite, equivalent to a demurrer to the evidence.

Upon motion of the petitioners here, the evidence in this case has been certified and is before us.

The controlling facts are these: The claimant lives at Big Stone Gap, Virginia, and on the day of the injury, November 27, 1926, was employed by Garrett W. Scott as an ordinary helper, and sometimes as a substitute truck driver, hauling material for the employer at that particular time for the construction of a bridge. His contract of employment provided that he was to receive free transportation to and from his home at Big Stone Gap and the place where he was required to work. On the day of the injury, while the truck was at or near Big Stone Gap, it stopped on the extreme right-hand side of the highway, where the plaintiff alighted for the purpose of proceeding across the highway to his home, about two blocks distant.

In the attack upon the award of the Commission, this is the evidence which is emphasized:

The plaintiff, in answer to one of the questions propounded to him, stated: "The truck from which I alighted just before I got hurt was sitting close to the right-hand side of the road headed toward Big Stone Gap. I got off that truck...