140 Va. 1 | Va. | 1924
after making the foregoing statement, delivered the following opinion of the court:
There are only two questions presented for decision by the assignments of error, which will be disposed of in their order as stated below:
1. Did the injury in the instant case arise out of and in the course of the employment of the injured employee, within the meaning of the workmen’s compensation law?
The question must be answered in the affirmative.
Section 2, subsection D, of the workmen’s compensation law, thus defines the injury for which compensation is provided by such law:
“Injury and personal injury shall mean only injury by accident, arising out of and in the course of the employment, and shall not include a disease in any form except where it results naturally and unavoidably from the accident.”
Whether an injury (which must, of course, be accidental, as is prescribed by the statue) to an employee engaged in an industrial business arose out of or in the course of the employment of the injured employee may be very difficult to determine under some circumstances, as is illustrated by the numerous controversies over that question which have arisen under the various workmen’s compensation laws, of England and of the
As appears from the findings of fact of the Industrial Commission above set forth, such, precisely, was the character of the injury in the instant ease. This case, therefore, presents no serious difficulty, and we unhesitatingly arrive at the conclusion above stated, which is the same conclusion reached by the Industrial Commission and by the learned judge of the court below.
In Cudahy Packing Co. v. Parramore, 263 U. S. 418, 44 Sup. Ct. 153, 68 L. Ed., 30 A L. R. 532 (October Term, 1923), there wag involved the question of whether the accidental injury to the employee was an injury “arising out of or in the course of the employ
In the Mahoney Case, the facts and the holding of the court appear from the following excerpt from the opinion of the court: “A laborer in the employ of defendant company, who boarded at the cook house and slept in the company’s bunk house, both places being upon defendant’s premises, after quitting work for the afternoon, while walking from the cook house to the bunk house after supper, fell, and sustained a dislocation of the left shoulder and a fracture of the left thumb. On a claim for compensation the Industrial Accident Commission, upon the foregoing facts, held that the accident did not occur in the course of applicant’s employment or while he was performing a service growing out of his employment, for the reason that the accident, happening outside of working hours, is not compensable. While an exception is usually made to this rule where the accident occurs upon the employer’s premises, such exception could not be -extended in the present ease to cover the situation of the employee boarding and sleeping upon the employer’s premises and being injured by an accident in and about the living quarters outside of working hours.”
We concur with the Commission in the view that the instant case is stronger in its facts showing that the injury occurred while the employee “was engaged in doing something the employer had instructed him to do, and what in reality amounted to a part of his day’s work.” That is to say, in the instant case, the facts disclose that the discharge of his duty, under express instructions from the employer as to what he should do preceding the hours fixed for the daily regular work, resulted in the fact that the employee was in the actual discharge of his duty as an employee at the time of the accident and injury, and that this (the relationship which the employee bore to the employment) caused the employee to be at the place he was at the time of the accident and thus exposed him, in a peculiar and abnormal degree, to the hazard or risk of the happening of the accident; although it was outside of the regular working hours. In such case the circumstance that the accident and injury occurred
Aside, however, from the particular distinguishing feature of it mentioned above, we think the Mahoney Case is out of line with the weight of authority and the better opinion touching the basic principle involved, which we have above referred to, and which is so forcibly stated by the Supreme Court in the Parramore Case, in the excerpts therefrom above quoted.
With respect to the other cases above mentioned as cited and relied on, as aforesaid, we deem it sufficient to say that we find nothing in them in conflict with the views we have above expressed; for the reason that in none of them was it a fact that the discharge by the injured employee of his duty as such occasioned his being at the place of the accident at the time of the accident and injury. Stated differently, in none of those cases was it a fact that the discharge by the injured employee of his duties as such occasioned his being in the place of the accident at the time of the accident and injury — and so occasioned his being at that time.exposed, in any peculiar or abnormal degree, to the hazard or risk of the happening of the accident and injury in question. And we find much in those
2. Did the court below err in 'requiring the employer or insurance carrier to pay the attorneys’ fee of the claimant, in addition to the compensation awarded her under the statute.
The question must be answered in the affirmative. The claimant relies upon section 63 of the workmen’s compensation law to sustain the action of the court below in question. That section provides as follows:
“If the Industrial Commission or any court before whom any proceedings are brought under this act shall determine that such proceedings have been brought, prosecuted or defended without reasonable ground, it may assess the whole cost of the proceedings upon the party who has brought or defended them.”
Without deciding whether attorneys’ fees are “costs” within the meaning of this section of the statute, we do not think that the court below was warranted by anything that appears from the record in holding that this case was brought before the court below on appeal by the employer or insurance carrier “without reasonable ground.” The question presented to the court below and upon this appeal was, and will be until this opinion is handed down, one which was undecided by this court; and although the Commission, the court below and this court have reached the same conclusion, and one adverse to the contention of the parties appealing, and we have reached that conclusion without serious difficulty, yet, we are constrained to recognize that the question involved was certainly a debatable question and one about which there may have been a reasonable and an honest difference of opinion at the time the appeal was taken to and prosecuted in the court below.
Affirmed, except that the provision of the judgment under review as to the attorneys’ fee, to the extent that it differs from the order of the Commission, is reversed.