Tyree v. Commonwealth

• Citation: 164 Va. 218
• Parties: W. D. TYREE v. COMMONWEALTH OF VIRGINIA, DEPARTMENT OF HIGHWAYS.
• Decision Date: 28 March 1935
• Court: Virginia Supreme Court

Page 218

164 Va. 218

W. D. TYREE v. COMMONWEALTH OF VIRGINIA, DEPARTMENT OF HIGHWAYS.

Supreme Court of Virginia, Richmond.

March 28, 1935.

Present, Holt, Epes, Hudgins, Gregory, Browning and Chinn, JJ.

1. WORKMEN'S COMPENSATION ACT — Elements Which Must Be Shown to Obtain Compensation — Injury While Performing Duties of Employment or Doing Something Incidental Thereto. — While, in order to obtain compensation, an employee must show not only that the injury occurred in the course of the employment, but that it arose out of the employment, it is universally held by the courts in construing the Workmen's Compensation Acts that the employee is entitled to its benefits if the injury occurred while he was reasonably performing the duties of his employment, or engaged in doing something incidental thereto.

2. WORKMEN'S COMPENSATION ACT — Injury Incidental to Duties of Employment — Gross Negligence Does Not Bar Recovery. — Under the Workmen's Compensation Act, though an employee may have been guilty of gross negligence, such conduct does not bar him from receiving compensation, if the act out of which the injury arose was incidental to the duties of his employment.

3. WORKMEN'S COMPENSATION ACT — Whether Injury Arose out of and in Course of Employment — Workman Injured by Explosion of Dynamite — Case at Bar. — In the instant case claimant was an employee in a quarry and his duties were to load stone on trucks to be transported to a crusher and to break those stones which were too large to go through the crusher. While loading a truck he observed a stone lying near the pile, too large to be loaded, and with a piece of dynamite attached to it by a sliver of shale. Before attempting to break up the stone, he tried to knock loose the piece of shale with a sprawl fork but struck the dynamite causing it to explode, seriously injuring him. There was evidence that employees handling stone were to report the finding of dynamite to the foreman so that he might dispose of it, but there was no evidence that this rule had been communicated to the claimant.

Held: That under the circumstances claimant's injury arose out of and in the course of his employment.

4. WORKMEN'S COMPENSATION ACT — Workman Injured by Striking Dynamite Attached to Rock — Rule Requiring Workmen to Report Dynamite to Foreman — Disobedience No Bar in Absence of Evidence of Workman's Knowledge of Rule — Case at Bar. — In the instant case claimant was an employee in a stone quarry and his duties were to load stone to be transported to a crusher, first breaking those stones which were too large to go through the crusher. While loading a truck he saw a stone, too large to be loaded, lying near the pile. Before breaking it he observed a piece of dynamite attached to it by a sliver of shale and while attempting to knock the shale loose with a sprawl fork he struck the dynamite which exploded, seriously injuring him. It was alleged that there was a rule that the laborers working with the stones were to report the finding of any dynamite to the foreman so that he could remove it but there was no evidence that the alleged rule had been communicated to the claimant. It was contended that claimant was not entitled to recover compensation because of his willful misconduct in disobeying this alleged rule.

Held: That the contention could not be sustained in the absence of evidence that knowledge of the rule had been brought home to the workman.

5. WORKMEN'S COMPENSATION ACT — Accident — Meaning of "Accident" as Used in the Act. — If the incident which gives rise to the injurious results complained of can be classed properly as a "mishap," or "fortuitous" happening — an "untoward event, which is not expected or designed" — it is an accident within the meaning of the Workmen's Compensation Act.

6. WORKMEN'S COMPENSATION ACT — Accident — Workman Injured While Attempting to Remove Dynamite from Stone — Case at Bar. — In the instant case claimant was a workman in a stone quarry and his duties were to load trucks with stone to be transported to a crusher, first breaking those too large to go through the crusher. While loading a truck claimant saw a stone, too large to be loaded, lying near the pile which he was loading, with a piece of dynamite attached to it by a sliver of shale. Believing the dynamite to be dead because of the presence of water on the rock, he attempted to knock off the shale with a sprawl fork, but struck the dynamite which exploded, seriously injuring him. It was contended that the event was not an accident within the meaning of the Workmen's Compensation Act.

Held: That the injury sustained was by accident within the meaning of the act, for the reason that petitioner, believing the dynamite was dead when he attempted to remove it from the stone did not anticipate or foresee the result of his act.

Appeal from an order of the Industrial Commission of Virginia.

The opinion states the case.

S. D. Timberlake, III, for the plaintiff in error.

Sinnott & May, for the defendant in error.

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

This is an appeal from an order of the Industrial Commission denying the petitioner compensation for an injury suffered while in the employ of the appellee. The undisputed facts may be stated as follows:

Petitioner was employed by the appellee as laborer at a quarry near Lexington, Virginia. His duties were to assist in the loading of stone from the stone pile at the quarry on to trucks to be transported to a crusher. If any of the stones were too large to be run through the crusher it was also his duty to break them into smaller pieces before they were loaded on the truck. At the time petitioner was injured a truck had backed up to the stone pile to be loaded when petitioner observed, on the side of the truck where he was working, a stone lying within three or four feet of the rock pile which was too large to be loaded without breaking it up. He thereupon procured a sledge hammer with which to break it, but before doing so he noticed a small piece of dynamite attached to the stone by a sliver of shale. Believing that the dynamite was dead, for the reason that he saw water on the stone, petitioner took a sprawl fork, which he was using to load the stone on the truck, and endeavored to knock the piece of loose shale off the rock in order to remove the dynamite from it. Instead of striking the shale at which he aimed, petitioner struck the dynamite held by the shale, causing it to explode and seriously injuring him, resulting in the total loss of the vision of both eyes.

Hearing was had before Commissioner Nickels, who reported adversely to the claimant, and upon appeal the application was reviewed by the full Commission, when a majority of the Commission, composed of Nickels and Dean, with Kizer, chairman, dissenting, affirmed the report of the hearing Commissioner, denying compensation on the ground that the injury suffered by the claimant did not arise out of and in the course of his employment.

The question of whether an injury arises out of and in the course of the employment within the meaning of the Workmen's Compensation Act (Code 1930, section 1887(1) et seq., as amended) has been discussed in such a multitude of conflicting decisions that it is now generally conceded by the courts that the decisions only serve to leave the subject in a hopeless state of confusion, and precedents are, therefore, of little value in the determination of any particular case. In this state of disharmony the Minnesota court refuses to review the decisions in England and in this country, and our own court, speaking through Judge Burks in King Empire Collieries Co., 148 Va. 585, 139 S.E. 478, 479, 58 A.L.R. 193, has declared its purpose to follow the example of the Minnesota court (State District Court, 134 Minn. 16, 158 N.W. 713, L.R.A. 1916F, 957) and the rule laid down by Lord Chancellor Haldane, who is quoted as saying: "Having regard to the conflict which exists between judicial opinions expressed in some of the decided cases, the only safe guide appears to me to be the language of the act of parliament itself." See also, 28 R.C.L., page 799.

In this connection, however, it seems pertinent to quote from Ridley Guano Co., 2 O.I.C. 460, where, in discussing this question, it is said: "The rule is that the employee must be engaged in the course of his employment when the injury occurs, within the period of his employment, at a place where he may reasonably be, and while he is reasonably performing the duties of his employment, or is engaged in doing some work incidental to it. It does not extend, however, to his undertaking to operate a dangerous piece of machinery or a dangerous instrumentality which other persons are employed to manage or operate."

And while, in order to obtain compensation the employee must show not only that the injury occurred in the course of the employment, but that it arose out of the employment, it is universally held by the courts in construing the compensation acts that the employee is entitled to its benefits if the injury occurred while he was reasonably performing the duties of his employment, or engaged in doing something incidental thereto. That the injury in the case at bar occurred within the period of his employment, and at a place where he might reasonably be, cannot be disputed. The question now is, therefore, whether or not the attempt on the part of the plaintiff to remove the particle of dynamite from the stone for the purpose of breaking it in order that it might go through the crusher can be considered as an act incidental to the work in which he was engaged, or separate and distinct from his duties.

It is argued that it was the custom in the quarry, whenever any of the workmen found dynamite, that they were to report it to the quarry foreman, in order that he might use it if it was of any value, and if of no value that he might otherwise dispose of it. Mr. Garrett, the foreman,...