Virginia Used Auto Parts, Inc. v. Robertson

• Decision Date: 14 June 1971
• Citation: 212 Va. 100,181 S.E.2d 612
• Parties: VIRGINIA USED AUTO PARTS, INC. v. Charlie C. ROBERTSON, a/k/a, etc.
• Court: Virginia Supreme Court

Page 612

181 S.E.2d 612

212 Va. 100

VIRGINIA USED AUTO PARTS, INC. v. Charlie C. ROBERTSON, a/k/a, etc.

Supreme Court of Appeals of Virginia.

June 14, 1971.

Rehearing Denied Sept. 1, 1971.

James M. Pickrell, Norfolk (Kellam, Pickrell, Lawler, Hodges & Kellam, Norfolk, on brief), for appellant.

Robert E. Brown, Norfolk (Henry E. Howell, Jr., Howell, Anninos & Daugherty, Norfolk, on brief), for appellee.

Before SNEAD, C.J., and I'ANSON, GORDON, HARRISON, COCHRAN and HARMAN, JJ.

COCHRAN, Justice

This appeal by Virginia Used Auto Parts, Inc., is from an order of the Industrial Commission holding that the claim of Charlie C. Robertson arising from an industrial accident was not barred by the judgment previously rendered against him in an action at law, and awarding him compensation under the Workmen's Compensation Act.

Robertson was injured in an accident which arose out of and in the course of his employment. He filed an application with the Commission against his employer, Virginia Used Auto Parts, Inc., for compenation under the Act. Before his claim had been heard, Robertson requested the Commission to suspend action thereon pending disposition of a civil action which he proposed to institute against his employer for the same injuries.

The action subsequently brought by Robertson was tried in the Circuit Court of the City of Norfolk and resulted in entry of judgment for his employer on the ground that there was no proof of negligence on the part of the employer which proximately caused Robertson's injuries. No appeal was taken from the final judgment order.

Robertson then requested that the Commission set for hearing his claim for compensation under the Act. His employer moved to dismiss the claim, asserting that it was barred by the final judgment entered against Robertson in the civil action. The motion to dismiss was overruled, the claim was heard on its merits and an award of compensation was made by Deputy Commissioner Rushbrooke. His findings of fact, conclusions of law and award were affirmed by the Commission.

The sole question for determination is whether Robertson, in pursuing his action at law to a final and unsuccessful conclusion, made an election which barred him from compensation under the Act.

It is conceded that, at the time Robertson was injured his employer was not insured in compliance with the Act. The employer was therefore subject to the provisions of Code § 65--102 (now Code § 65.1--106):

'If such employer refuses and neglects to comply with the provisions of the preceding section (§ 65.1--105) he shall be punished by a fine of ten cents for each employee at the time of the insurance becoming due, but not less than one dollar nor more than fifty dollars for each day of such refusal or neglect, and until the same ceases, And he shall be liable during continuance of such refusal or neglect to an employee either for compensation under this Act or at law in a suit instituted by the employee against such employer to recover damages for personal injury or death by accident, and in any such suit such employer shall not be permitted to defend upon any of the following grounds:

'(1) That the employee was negligent;

'(2) That the injury was caused by the negligence of a fellow employee; or

'(3) That the employee had assumed the risk of the injury.

'The fine herein provided may be assessed by the Commission in an open hearing with the right of review and appeal as in other cases.' (Emphasis added)

The Commission, in its opinion, held that this section was 'a statutory guarantee for payment of damages for personal injury sustained in an accident arising out of and during the course of the employment by an employee of an uninsured employer.' Hence it concluded that Robertson's unsuccessful common law action was no bar to his claim under the Act.

We agree with this conclusion. The statute, penal in nature, provides extraordinary advantages to an injured employee when his employer has failed or refused to comply with the Act. It imposes liability upon the uninsured employer either in a civil action, in which he is not permitted to assert certain important defenses, or...