Vanzant v. Southern Bending Co.

• Citation: 143 Va. 244
• Parties: E. V. VANZANT v. SOUTHERN BENDING COMPANY.
• Decision Date: 17 September 1925
• Court: Supreme Court of Virginia

Page 244

143 Va. 244

E. V. VANZANT v. SOUTHERN BENDING COMPANY.

Supreme Court of Virginia, Staunton.

September 17, 1925.

1. WORKMEN'S COMPENSATION ACT — Appeal and Error — Findings of Fact of the Industrial Commission. — When the Industrial Commission certifies to the appellate court its findings of fact predicated upon evidence introduced or appearing in the proceedings, in the absence of fraud, such findings of fact are conclusive and binding.

2. WORKMEN'S COMPENSATION ACT — Notice of Cancellation of Insurance — Acts of 1918 and 1922. — Section 69(a) of the Workmen's Compensation Act of 1918 was amended by Acts of 1922, Page 743, so as to require notice to the Industrial Commission by an employer when he canceled his insurance. The act of 1918 did not require such notice. In the instant case plaintiff was injured on the 15th day of December, 1921, and claimed that it was obligatory upon defendant to have given notice of the cancellation of its insurance, and that failing in this defendant was liable to plaintiff under the provisions of section 69(b).

Held: That since the statute in force on the 15th day of December, 1921, did not require notice of cancellation of insurance, it was not incumbent upon defendant to give it.

3. WORKMEN'S COMPENSATION ACT — Record — Opinions of Members of the Commission. — Opinions of the members of the Industrial Commission are not a part of the record in the sense that the appellate court can look to them to ascertain the "findings of fact," but there is no reason why they should not by proper order be made a part of the record in order to give the appellate court the benefit of the views of the members of the commission.

4. WORKMEN'S COMPENSATION ACT — Findings of Commission — Finding as to the Employment by Defendant of Eleven Men — Case at Bar. — Where the majority of the Industrial Commission found as a fact "that the defendant company at no time had as many as eleven men in its employment at or prior to the date of the accident here complained of," the Supreme Court of Appeals is bound by such finding, and the judgment of the lower court refusing compensation must be affirmed.

Error to a judgment of the Circuit Court of Scott county, affirming a majority order of the Industrial Commission denying compensation to claimant under the Workmen's Compensation Act. Claimant assigns error.

The opinion states the case.

O. M. Vicars and R. P. Bruce, for the plaintiff in error.

Sells, Simmonds & Bowman, and Morison, Morison & Robertson, for the defendant in error.

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

This is a writ of error from a judgment of the circuit court of Scott county affirming a majority award by the Industrial Commission.

There have been four trials of this case — first before the late Chairman McHugh; second before Commissioner Handy (now chairman of the Commission); third, before the full Commission; and fourth, before the trial court. All of the bribunals found in favor of the defendant in error except Commissioner Handy.

From the findings of fact certified by a majority of the Commission, it appears that the defendant conducted a saw mill operation during a portion of the year 1920.

In December, 1920, it discontinued its operation and all of the employees were dispensed with, except the foreman, who was retained as a care taker.

For practically twelve months this condition prevailed.

A short period before the accident (the record is silent as to the date), the plaintiff entered into a contract with the defendant to cut certain timber, the property of defendant, at $1.25 per thousand feet.

On the 15th day of December, 1921, a log rolled against the leg of plaintiff, injuring same so seriously that it had to be amputated. A short period after the accident occurred, the defendant resumed its saw mill operations. It is conceded that before the saw mill operations were closed in 1920 defendant had in its employ more than eleven operatives, and pursuant to the provisions of the statute, carried industrial insurance. When it closed operation in 1920, it permitted its insurance to lapse and did not renew same until after the accident to plaintiff.

The defenses relied on are: 1st That the plaintiff was an independent contractor; 2nd — that the defendant at the time of the accident had regularly in its employment less than eleven operatives and therefore was exempted under the provisions of section 15 of the Workman's Compensation Law (laws 1918, c. 400), which provides that the act does not apply "to any person, firm or private corporation, including any public service corporation, that has regularly in service less than eleven operatives in the same business within this State, unless such employees and their employers...