Sullivan v. Suffolk Peanut Co., Record No. 2022.

• Decision Date: 21 November 1938
• Docket Number: Record No. 2022.
• Citation: 171 Va. 439
• Parties: VIOLA ROSE SULLIVAN v. SUFFOLK PEANUT COMPANY.
• Court: Virginia Supreme Court

Page 439

171 Va. 439

VIOLA ROSE SULLIVAN v. SUFFOLK PEANUT COMPANY.

Record No. 2022.

Supreme Court of Virginia, Richmond.

November 21, 1938.

Present, All the Justices.

1. WORKMEN'S COMPENSATION ACT — Injuries Covered. — In order for an injury to be compensable under the Workmen's Compensation Act, it must "arise out of and in the course of" the employment.

2. WORKMEN'S COMPENSATION ACT — Accident Arising out of and in Course of Employment — Each Case Must Stand Alone. — In interpreting the phrase "arise out of and in the course of" the employment, as used in the Workmen's Compensation Act, since the facts in no two cases are identical, to a certain extent each case must stand alone.

3. WORKMEN'S COMPENSATION ACT — Accident Arising out of and in Course of Employment — Burden of Proof. — In cases under the Workmen's Compensation Act, the burden of supplying evidence from which the inference can be legitimately drawn that the injury arose out of and in the course of the employment, rests upon the claimant.

4. WORKMEN'S COMPENSATION ACT — Award — Award Based on Surmise or Conjecture. — An award by the Industrial Commission based upon surmise or conjecture will be set aside.

5. WORKMEN'S COMPENSATION ACT — Evidence — Circumstantial Evidence — Presumption That Claims Are within Statute. — A finding by the Industrial Commission that an injury is compensable may be established by circumstantial evidence and in some cases claims are presumed to be within the meaning of the statute.

6. WORKMEN'S COMPENSATION ACT — Presumptions and Burden of Proof — Where Employee Found Dead from Accident at or near place of Work. — Where an employee is found dead as the result of an accident at his place of work or near by, where his duties may have called him during the hours of his work, and there is no evidence offered to show what caused the death or to show that he was not engaged in his master's business at the time, the court will indulge the presumption that the relation of master and servant existed at the time of the accident, and that it arose out of and in the course of his employment.

7. WORKMEN'S COMPENSATION ACT — Presumptions and Burden of Proof — Night Watchman Found Dead on Railroad Track near Employer's Premises — Case at Bar. — In the instant case, an appeal from an order of the Industrial Commission denying compensation, the employee, a night watchman, was found dead on a railroad track near the premises which he was in duty bound to watch; his duties did not require him to be on the premises at all times, and the point where he was killed afforded a view of a large portion of the plant of his employer. There was no evidence which tended to show that he was upon any private mission of his own, and the employer granted him the privilege of exercising his own discretion in watching and protecting the premises.

Held: That, under these circumstances and in the absence of any evidence to the contrary, a presumption would be applied that the employee was engaged in his master's business and that the accident which caused his death arose out of and in the course of his employment.

Appeal from an order of the Industrial Commission of Virginia.

The opinion states the case.

Thomas L. Woodward and M. Anderson Maxey, for the appellant.

M. Wallace Moncure, Jr., and R. E. Cabell, for the appellee.

GREGORY, J., delivered the opinion of the court.

The appellant, Viola Rose Sullivan, filed a claim with the Industrial Commission in February, 1938, on behalf of herself as widow, Philip E. Sullivan, a son thirteen years of age, and Edith Sullivan, a daughter ten years of age, respectively, of Oscar E. Sullivan, wherein she claimed compensation from Suffolk Peanut Company, employer, for the death of Oscar E. Sullivan, employee. The Industrial Commission denied the claim on the ground that the claimant failed to prove that the accident resulting in the death of her decedent arose out of and in the course of his employment, as required by Code, section 1887(2)(d).

There is practically no conflict in the evidence. The findings of fact by the commission are very brief. The facts as they will now be stated will not materially conflict with those found by the commission but they will be developed and stated in more detail.

Sullivan, the deceased employee, had been employed by Suffolk Peanut Company for more than eight years as a night watchman. The plant of this concern consists of a number of buildings located in the city of Suffolk in a triangle bounded by the Norfolk and Western right of way on the north and extending thereon a distance of 1,200 feet; on the southeast by Saratoga street which crosses the railway right of way a short distance east of the premises of the Suffolk Peanut Company; and on the west the property is bounded by Wellons street. An addition to the office of the appellee's plant, constructed by agreement with the railway company, projects to the north a distance variously estimated at from six to twelve feet into the right of way of the railway company, so that the north wall of this addition is three feet from the south end of the ties of the railway company's side track which extends along the entire distance of the plant. This addition creates an offset in the building and obstructs the view of one looking down the railroad side of the building unless he moves to the right of way of the railway company.

It is conceded that the death of Sullivan was the result of an accident. On October 6, 1937, Sullivan punched the time clock at 4:15 A.M. At approximately that time three members of the Suffolk police department riding in a scout car passed the premises but before passing stopped and talked with Sullivan. An east-bound freight train had stopped at Suffolk to take on and put off cars both to the west and to the east of the Saratoga street crossing. This train pulled out at 4:53 A.M. About 5 o'clock A.M., police officer Ballard, one of the three who had a short time previously talked to Sullivan, found the latter's body on the tracks and in the crossing. He had been killed by the train and blood appeared on the fifty-third car from the engine. No one saw Sullivan at the point where he met his death. There is no evidence as to the circumstances surrounding the fatal accident. All that we know is that the train passed over his body and killed him. The point where his body was found was estimated at from thirty-five to ninety-three feet from the premises of the appellee.

Witness Butler who had been a night watchman for the appellee and who also had worked on an alternating shift with Sullivan testified that in the discharge of his duties as night watchman he had on occasions gone on the premises of the Norfolk and Western and that this was necessary in order to obtain a vision of the plant. He stated that his duties did not call him to the street crossing but that the conduct of his work was left to his wisdom and discretion.

Officer Ballard testified that the point where Sullivan was struck on the railway track was a good "vantage point" and that one could obtain a view of the plant from this point. Officer Spiers also testified that in order to obtain a view of the plant it was necessary to go on the tracks of the railway company.

At the time the body of Sullivan was discovered upon the tracks his flash light and time clock were found beside him.

Witness Pinner, secretary and treasurer of the appellee, testified that the watchman's duties required him to take care of the entire premises but that he was not expected to endanger his life by exposing himself to trains. He also testified that the watchman was not expected to leave the premises but that it was his duty to apprehend thieves and to call the police or fire departments even if these duties carried him away from the premises.

Sullivan was killed during his working hours and within less than forty minutes after the police had conversed with him.

The appellant maintains that the deceased met his death by accident arising out of and in the course of his employment. She asserts that this conclusion is warranted from these facts: Sullivan was killed during the hours of his work at a place where a night watchman might be; the point of accident was one which afforded a view of the entire railroad side of the plant and that there is an entire absence of any evidence that he was on a private mission of his own at the time he was struck.

The appellee denies that the facts justify the conclusion that Sullivan met his death as the result of an accident arising out of and in the course of his employment. It contends that he had abandoned his employment at the time and was on no mission of the employer.

1, 2 In order for an injury to be compensable it must "arise out of and in the course of" the employment. This phrase has received a great deal of consideration by the courts and nearly every court of last resort in this country has attempted to construe it. The facts in no two cases are identical and to a certain extent each case must stand alone. In Virginia we have adopted the rule of the McNicol Case. (In re McNicol, 215 Mass. 497, 102 N.E. 697, L.R.A. 1916A, 306). See Bradshaw Aronovitch, 170...