Virginia Elec. & Power Co. v. Quann, 4379

• Decision Date: 13 June 1955
• Docket Number: No. 4379,4379
• Citation: 197 Va. 9,87 S.E.2d 624
• Parties: VIRGINIA ELECTRIC AND POWER COMPANY v. EDWARD C. QUANN. Record
• Court: Virginia Supreme Court

Page 624

87 S.E.2d 624

197 Va. 9

VIRGINIA ELECTRIC AND POWER COMPANY v. EDWARD C. QUANN.

Record No. 4379.

Supreme Court of Appeals of Virginia

June 13, 1955.

Hunton, Williams, Gay, Moore & Powell; T. Justin Moore, Jr., Francis V. Lowden, Jr. and E. Milton Farley, III, for the appellant.

S. Page Higginbotham and Vance M. Fry, for the appellee.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

This appeal presents for review an award of the Industrial Commission against the Virginia Electric & Power Co., hereinafter designated employer, in favor of Edward C. Quann, hereinafter designated claimant.

The first question presented is whether the evidence supports the Commission's finding that claimant sustained an 'injury by accident . . . arising out of and in the course of the employment', within the meaning of Code Sec. 65-7.

The pertinent evidence on this issue is that claimant had been employed by the Virginia Electric & Power Company since March, 1948, as a lineman helper. His duties required him to assist in loading and unloading trucks which transported electric wires from a warehouse in Orange to places in surrounding territory where needed. Within the next five years he sustained several injuries to his back, for some of which he received compensation. On July 28, 1952, while spiking an electric pole he ruptured a disc in the 4th lumbar interspace. This necessitated an operation and removal of the disc on October 27, 1952, for which he received compensation. Eight days after returning to regular work he injured his back again and lost eight days from work. These several injuries within the course of a few years weakened his back and predisposed him to injury.

On December 14, 1953, claimant in the course of his employment was helping to lift a coil of wire from the ground onto the bed of a truck, when he claimed he sustained the injury in question. The coil of wire was three feet in diameter and weighed 159 pounds. The coil had been broken and some wire used from it on a previous job. In retying the coil it was not tied tightly and some of the wire was loose. His fellow worker and superior had hold of the top of the coil. Claimant stooped and grasped the coil at the ground and then together they lifted it onto the truck. As the bottom of the coil was six to eight inches from the ground the wire unexpectedly shifted or tilted, thereby throwing a greater part of the weight upon and putting an unexpected strain upon claimant. He stated that at this moment he hesitated maybe a second and 'felt something pop or make a definite snap in my back.' He exclaimed 'I have hurt my back.'

Claimant reported his injury to his foreman, but continued to work the remaining few hours of that day. On the next day his back was paining him so badly that he was unable to work. He consulted Dr. David H. Miller in Orange, Virginia, a general practitioner, who examined him and sent him to see Dr. W. Gayle Crutchfield, a neurosurgeon, of Charlottesville. On December 29, 1953, Dr. Crutchfield found that claimant had a herniation at the interspace below the 5th lumbar, which necessitated an operation and removal of the ruptured disc. Later the doctor advised claimant to avoid heavy work, certainly for several months until he had a recovery. On this and other testimony, the majority of the Commission (Nickels dissenting) found that the claimant had sustained injury by accident arising out of and in the course of his employment within the meaning of Code Sec. 65-7.

The employer contends that the Commission's finding of fact that claimant was injured as a result of the shifting of weight of the coil of wire during the loading operation is not supported by credible evidence and should be disregarded by this Court. This contention is based on alleged contradictory statements of claimant, and on the fact that two of his fellow employees, A. C. McConchie, who together with claimant was loading the wire, and S. L. Winslow, who came into view as the wire was being loaded on the truck, did not know or could not recall whether there had been any shifting in weight.

We find no substantial contradiction in the testimony of the claimant and his prior statement. The alleged prior inconsistent statement was made under the following circumstances:

J. H. Jones, a representative of the employer, interviewed claimant on January 4, 1954, within five days from the date of his operation while he was in bed in the hospital. Jones said he asked claimant 'to tell me in detail everything he could about it (the accident).' Jones then wrote the substance of claimant's statements, read it to claimant, who signed it without reading it over. These statements in Jones' handwriting contained no reference to the shifting of the weight of the coil of wire. When asked as a witness why he did not tell Jones that the weight of the wire shifted while loading, claimant said: '. . . (When) Mr. Jones came up there and got this statement I was laying in the hospital and my back was hurting. I can't tell you word for word just what I told Mr. Jones'; after which he was asked: 'You didn't say anything about the wire shifting when you felt the accident happen? A. I don't know whether I did or not. I thought I had it all there. I thought I told Mr. Jones.' Even if this omission be regarded as inconsistent, the inconsistency is not sufficient to discredit claimant's entire testimony.

A. C. McConchie, a fellow worker, who together with claimant loaded the coil of wire on the truck, testified that he did not remember whether there was any shift in weight of the wire, but he did recall that immediately after the wire was loaded claimant said he had hurt his back, 'grabbed' his back with his hands, and the expression on his face indicated he was hurt.

S. L. Winslow, a fellow worker, testified that he came upon the scene as the coil of wire was being loaded in the truck. He did not observe any shifting in weight of the roll of wire, but he saw claimant as he turned away from the truck and heard him say: 'I believe I have hurt my back' and 'he made a face like something -- and I knew something had happened.'

Other evidence for claimant tends to show that if a coil of wire is not tied tightly and is being loaded by two men, it may shift either way and throw one of the men off balance and cause him either to drop it or sustain extra strain. Under the circumstances, we find no error in the Commission's finding of fact that claimant was hurt because of the shifting of weight of the coil of wire. Nor did it err in its conclusion of law that this injury was 'by accident.'

The meaning of the phrase 'injury by accident', or 'accidental injury', as used in the statutes of the various states, has been the source of a great volume of litigation in all jurisdictions. This Court has held in line with the majority of decisions in other states that when usual exertion results in actually breaking, herniating, or letting go with an obvious sudden mechanical or structural change in the body, whether external or internal, the injury is accidental. The minority view is that there can be no recovery unless claimant proves that the exertion which caused the disability was unusual, untoward, as well as unexpected. This subject, with citations of cases supporting the different views, is discussed at some length in I Larson's Workmen's Compensation Law, beginning at p. 519.

The facts in the case now under consideration are strikingly similar to the facts in Big Jack Overall Co. v. Bray, 161 Va. 446, 171 S.E. 686, which were that claimant, a woman apparently in normal health, attempted to lift a bundle of clothes weighing 40 or 50 pounds from a low truck, not straight up as she had been doing for four or five years, but with her body twisted to the right, and in so doing she felt a sudden snap or tear in her back and side, following by paralysis. It was held that the unusual position of her body, while voluntarily assumed, produced the unusual, sudden and unexpected strain upon the muscles of her back, for which she was allowed compensation. At page 451 (161 Va.), we adopted the following from Vance on Insurance: "The definition of accident generally assented to is an event happening without any human agency, or, if happening through human agency, an event which, under the circumstances, is unusual and not expected by the person to whom it happens.' . . .' and added: '. . . (Where) the effect was not the natural and probable consequence of the means employed, and was not intended or designed, the injury was produced by accidental means.'

We further said: 'This is apparent when the term is applied to an injury resulting from a strain. A man intends to lift a heavy object, but in lifting he miscalculates the resisting force of his body, a blood vessel bursts and death follows. Even in such a case recovery has been allowed under an accident insurance policy which covered death 'in consequence of an accident."' U.S. Mutual Accident Association v. Barry, 131 U.S. 100, 9 S.Ct. 755, 762, 33 L.ed. 60.

This meaning of the phrase 'injury by accident' has been applied or cited with approval in...