136 Va. 489 | Va. | 1923
delivered the opinion of the court.
The Industrial Commission made the following findings of fact:
“The claimant, J. T. Sutherland, while at work with his stepson, N. C. Nickels, in one of the mines of the defendant company at Arno, Ya., on or about the 23rd of December, 1921, and while loading coal, accidentally got some particles of coal or slate in his left eye,- and as a result of said accident it became necessary later to have the eye removed by an eye specialist. The claimant was engaged in work under two contractors, Wayne Warf and Steve Williams, who were working men in a particular mine or chamber where the accident happened. The claimant’s stepson, Nickels, had been working there for some little time and offered to get a job there for the claimant. The claimant had been working, according to his testimony, from Monday until Friday, the day of the accident. The defendant’s testimony was that he had been there but two days.
“The main defense set up by the defendant company was that the claimant was not an employee, as he had*493 received no check from the superintendent of the mine •entitling him to work under said contractors, and that the company required such checks to be issued before a man could go to work under this contract plan.
“There is some conflict in the evidence as to just what happened in relation to the issuance of the checks. The rule referred to does not seem to have been a written rule. No copy was introduced in evidence and its main purpose seems to have been as to payment for work done. The contractors, Warf and Williams, both knew that this man was working without a check. Warf had told the claimant that he must get a check; claimant had requested Warf to get one for him which Warf said he would do, and permitted claimant to continue working. Wilson, who had charge of the cars, furnished cars for the claimant to load with his stepson and introduced no objection to claimant continuing work. Robinett, the assistant superintendent at Arno, found Sutherland at work in the mine on the 23rd of December while making his round. He asked Sutherland his number ‘and he said that he didn’t have any.’ Robinett then said T will give you an order so you can .get them, for you can’t work in here without them’, and he (Sutherland) said Mr. Warf had gone for him, and I said ‘if he gets them for you, all right, but you have to have them if you work.’ With this explanation Robinett left Sutherland and did not object to his ■continuing work.
“It is true that Warf claims to have returned later in the day and told the claimant that he must get the ■checks himself, but even then he made no objections to his continuing work.
“It is clear from the evidence that neither Robinett nor the contractors ordered Sutherland to stop wor 'Their direction simply was that he should get the*494 cheeks, and a reasonable inference’ to draw from this testimony is that he was expected later in the day, at some convenient time, to comply with this requirement. In the meantime they permitted him to go on with his work just as the other men were doing who held checks and were working under these contractors. From the evidence as a whole we find thaW the claimant at the time he received his injury was in fact an employee of the defendant company, and that the accident complained of, which resulted in the loss of his left eye, arose out of, and in the course of, his employment as such.”
There is no error in the judgment of the trial court, and it will be affirmed.
Affirmed.