Stonega Coke & Coal Co v. Sutherland

• Decision Date: 14 June 1923
• Citation: 118 S.E. 133
• Court: Virginia Supreme Court
• Parties: STONEGA COKE & COAL CO. v. SUTHERLAND.

118 S.E. 133

STONEGA COKE & COAL CO.

v.SUTHERLAND.

Supreme Court of Appeals of Virginia.

June 14, 1923.

Appeal from Circuit Court, Wise County.

Proceeding under the Workmen's Compensation Act by J. T. Sutherland opposed by the Stonega Coke & Coal Company. From an order of the circuit court affirming an award of the Industrial Commission, the employer appeals. Affirmed.

John W. Chalkley, of Big Stone Gap, for appellant.

Taylor & Bullitt, of Big Stone Gap, for appellee.

BURKS, J. [1] This is an appeal from an order of the circuit court of Wise county affirming on appeal an award of the Industrial Commission. The petition for appeal is accompanied with a transcript of the record of the proceedings had before the Industrial Commission, including its findings of fact, required by law to be made. The petition for appeal to this court, and also that to the circuit court, files as exhibits certain letters and papers and a copy of the testimony tak en before the deputy commissioner. These documents constituted no part of the record in the ease, and could not be thus introduced into the record. They were properly stricken out by the circuit court, and will be likewise disregarded by this court. Neither the trial court nor this could hear any evidence in the cause. Section 61 of the act establishing the commission (Acts 1918, c. 400), as amended by Acts 1922, c. 425, p. 741, expressly provides that "the award of the commission * * * shall be conclusive and binding as to all questions of fact." In the absence of fraud, the findings of fact by the commission are not subject to review. It is the sole judge of the facts established by the evidence, and neither evidence adduced before it nor any other evidence can be introduced to impeach or qualify the facts found by it. The proceeding is intended to be summary, and prior to 1922 the judgment of the trial court was final. No appeal was allowed to this court. The Legislature has provided a disinterested and competent tribunal to ascertain the facts, and has declared that its findings of fact shall be conclusive and binding. The compensation allowed the employee is moderate, and the manifest purpose of the Legislature, in this class of cases, is to furnish it speedily and at small cost.

A motion was made to dismiss the appeal because not taken within the 30 days provided by the statute. The case was heard by the judge of the circuit court in vacation. He seems to have prepared and signed the order appealed from on October 27, 1922, and directed it to the clerk of the court to be entered on the order book. It was not so entered till November 11, 1922, and this appeal was applied for on December 9, 1922. This was within time. The vacation order did not become effective till entered of record. Lee v. Willis, 99 Va. 16, 37 S. E. 826.

[3, 41 The Industrial Commission made the following findings of fact:

"The claimant, J. T. Sutherland, while at work with his stepson, N. C. Nickels, in one of the mines of the defendant company at Arno, Va., on or about the 23d of December, 1921, and, while loading coal, accidentally got some particles of coal or slate in his left eye, and as a result of said accident it became necessary later to have the eye removed by an eye specialist. The claimant was engaged in work under two contractors, Wayne Warf and Steve Williams, who were working men in a particular mine or chamber where the accident happened. The claimant's" stepson, Nickels, had been working there for some little time and offered to get a job there for the claimant. The claimant had been working, according to his testimony, from Monday until Friday, the day of the accident. The defendant's testimony was that he had been there but two days.

"The main defense set up by the defendant company was that the claimant was not anemployee, as he had received no check from the superintendent of the mine entitling him to work under said contractors, and that the company required such checks to be issued before a man could go to work under this contract plan.

"There is some conflict in the evidence as to just what happened in relation to the issuance of the checks. The rule referred to does not seem to have been a written rule. No copy was introduced in evidence, and its main purpose seems to have been as to payment for work done. The contractors, Warf and Williams, both knew that this man was working without a check. Warf had told ...