SMITH v. STATE HIGHWAY COMMISSION OF VIRGINIA ET AL. (Supreme Court of Appeals of Virginia. Nov. 21, 1921.) 109 Southeastern Reporter, 312.

1. MASTER AND SERVANT-STATE HIGHWAY COMMISSION IS NOT "EMPLOYER" WITHIN COMPENSATION ACT. The State Highway Commission of Virginia is not the employer of those working under it within Workmen's Compensation Act, §§ 2a, 8. providing that employers shall include the state, any municipal corporation within the state, or any political division thereof.

(For other cases, see Master and Servant, Dec. Dig. § 364.)

(For other definitions, see Words and Phrases, First and Second Series, Employer.

2. MASTER AND SERVANT-STATE LIABLE FOR COMPENSATION AS EMPLOYER OF HIGHWAY COMMISSION'S EMPLOYEE.

Within Workmen's Compensation Act, § 2a, defining employers, the state is the employer of those working for the State Highway Commission.

(For other cases, see Master and Servant, Dec. Dig. § 364.)

Certified from Industrial Commission.

Claim by Grace Lillard Smith before the Industrial Commission against the State Highway Commission of Virginia and the Commonwealth of Virginia to recover compensation for the death of claimant's husband employed by the Highway Commission. On questions of law certified by the Industrial Commission. Claimant held entitled to compensation from the Commonwealth, but not from the State Highway Commission.

PER CURIAM.. This case is before us upon the following certificate: "The Industrial Commission of Virginia, pursuant to the provisions of section 61 of the Workmen's Compensation Act (Acts 1918, p. 637) beg leave to certify to this honorable court for its decision and determination a question of law arising in the above-entitled proceedings, now pending before said Industrial Commission of Virginia.

"The claimant, Grace Lillard Smith, in her own right and in behalf of her infant child, had filed her application for hearing before the Industrial Commission of Virginia, setting up the claim of herself and infant child as dependents of her husband, William Oscar Smith, a quarry foreman in the direct employment of the State Highway Commission of Virginia, who died as result of an injury which arose out of and in the course of his employment with the said State Highway Commission, on the 30th day of June, 1920.

"In said application claimant asks that the compensation be paid as provided by the statute, either by the State Highway Commission of Virginia or the Commonwealth of Virginia, as liability under the statute may be determined.

"The State Highway Commission of Virginia now comes by counsel, and moves the Industrial Commission of Virginia to dismiss the aboveentitled proceedings as to the said State Highway Commission and make the commonwealth of Virginia party defendant, stating that if any claim

at all can be asserted in the above-entitled proceedings it must be asserted against the commonwealth of Virginia, section 2 (a) Workmen's Compensation Act of Virginia (Acts 1918, p. 637), whereupon the commonwealth of Virginia, by consent of the Attorney General of Virginia, was made a party defendant to the above-entitled proceedings.

"The question of law which is here respectfully certified to this honorable court for its decision and determination is:

"Was the State Highway Commission the employer of William Oscar Smith, at the time of his death, and therefore the proper party defendant, and is it, as such, liable to pay compensation to the claimants in the act provided? or,

"Was the commonwealth of Virginia the employer at said time and, as such, liable to pay said compensation; if so, in what manner and against what funds should the Industrial Commission of Virginia direct an award for the payment of compensation to the claimants in the aboveentitled proceedings?"

[1] 1. Taking up the two questions thus submitted to us in their order, we answer that the State Highway Commission was not the employer of William Oscar Smith within the contemplation of the Workmen's Compensation Act, because the commission does not fall within the definition of an employer contained in section 2 thereof. The act pro

vides (section 2a) that

"Employers' shall include the state and any municipal corporation within the state or any political division thereof, and any individual, firm, association or corporation, or the receiver or trustee of the same, or the legal representative of a deceased employer, using the service of another for pay."

A counterpart of this provision is found in section 8 of the act as follows:

"Neither the state, nor any municipal corporation within the state nor any political subdivision thereof, nor any employee of the state or of any such corporation or subdivision shall have the right to reject the provisions of this act relative to payment and acceptance of compensation: and the provisions of sections 5, 6, 16, 17 and 18 shall not apply to them."

It is clear that the State Highway Commission is neither a municipal corporation nor a political division thereof, nor is it an individual, firm, association, or corporation, receiver or trustee of the same, or the legal representative of a deceased employer.

Not falling within the terms of the definition to be found in the act, we have no hesitancy in saying that the State Highway Commission cannot be regarded as the employer of the deceased.

[2] 2. (a) We think it is equally clear, however that the deceased was an employee of the state, that if there be nothing in the facts of the case concerning the circumstances of the accident which would defeat the right of his estate to compensation for his death, the state is liable for the compensation allowed.

It

The definition above quoted brings the state within the operation of the act, and the act, and the organization and duties of the State Highway Commission make those employed by it employees of the state. is manifest, for example, that if an employee of the State Corporation Commission, or of the Industrial Commission of Virginia, should be injured by accidental means, he would be entitled to the benefit of the provisions of the act, but the proceeding could not be against either commission, and would have to be brought against the state.

[3] (b) As to the manner in which and the funds from which the compensation awarded by the Industrial Commission in such a case should

be paid, no order can be made directing the payment, but the same must be provided for by special appropriation to be made by the Legislature.

While it is true that the Compensation Act contemplates employees of the state, and expressly provides that they shall have the benefit of the same, no provision has yet been made for the payment of claims against the state, and section 2582 of the Code provides that no judgment or decree, unless otherwise provided, shall be paid without a special appropriation by law. Neither the court nor the Industrial Commission can require the Legislature to make an appropriation for cases of this character, but it is not to be doubted for a moment that such appropriation will be made in every case in which an order against it is made by the commission. The state will not provide that its employees shall have the right to claim compensation under the Workmen's Act, and then decline to give them any means whereby they may collect the compensation allowed them thereunder.

We have been referred to the case of Woodcock v. Board of Education, decided by the Supreme Court of Utah January 13, 1920, and reported in 55 Utah, 458, 187 Pac. 181, 10 A. L. R. 181. In that case a schoolteacher had presented her claim for injuries sustained in her usual duties, and the Industrial Commission made an award in her favor against the board of education of Salt Lake City. The board resisted the payment of the award on the ground that there were no funds in their hands applicable to such allowances, and the court held that the judgment should be paid from the funds provided for the support and maintenance of schools. The case has no application here, because the Utah statute expressly made each school district as "employer," and as such liable for the compensation.

PARHAM v. STANDARD OIL CO. OF LOUISIANA.

(United States District Court, N. D. Mississippi, E. D. September 17, 1921.)

275 Federal Reporter, 1007.

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1. MASTER AND SERVANT LOUISIANA COMPENSATION ACT CONSTITUTIONAL.

The Workmen's Compensation Law of Louisiana is constitutional. (For other cases, see Master and Servant, Dec. Dig. § 347.)

2. MASTER AND SERVANT

LOUISIANA COMPENSATION ACT_EFFECTIVE AGAINST EMPLOYEE, IN ABSENCE OF EXPRESS STIPULATION.

The Workmen's Compensation Act of Louisiana becomes effective by operation of a legal presumption under section 3 as against an employee who begins work without expressly stipulating against the provisions of the act, and can thereafter be terminated only by written notice given not less than 30 days prior to the accident to either party, under paragraph 4. (For other cases, see Master and Servant, Dec. Dig. § 358.)

3. MASTER AND SERVANT-ELECTION BY MINOR'S FATHER AFTER ACCIDENT HELD IN TIME, UNDER LOUISIANA COMPENSATION ACT.

Where employee was under the age of 18 years and was without a curator or tutor. and where neither the father, mother. nor the court terminated the operation of the Workmen's Compensation Act of Louisiana as to the employee, on the employee's behalf. prior to the accident. under section 3. par. 6, the father may, even after the injury, elect. on the employee's behalf, to make the act inoperative as to such employee. under section 16, providing that. in case injured employee is a minor at the time when the right to terminate the operation of the act accrues to him, no limitation of time shall run so long as he has no curator or tutor; section 3. par. 4, requiring written notice to terminate operation of the act not less than 30 days prior to accident. being inapplicable in such case. (For other cases. see Master and Servant, Dec. Dig. § 359.)

4. MASTER AND SERVANT-SUIT BY MINOR'S FATHER HELD AN ELECTION UNDER LOUISIANA COMPENSATION ACT. Father of injured employee under 18 years of age, who was without tutor or curator, by filing suit against employer, exercised the right on behalf of the employee to terminate the operation of the Workmen's Compensation Act of Louisiana. written notice provided for in section 3 being unnecessary. since the law does not require the doing of an idle or useless thing.

(For other cases, see Master and Servant. Dec. Dig. § 358.)

At law. Action by Roy P. Parham against the Standard Oil Company of Louisiana. În demurrer to complaint. Demurrer overruled.

W. D. & J. R. Anderson. of Tupelo, Miss.. for plaintiff.

Green & Green. of Jackson, Miss., and Leftwich & Tubb, of Aberdeen. Miss.. for defendant.

HOLMES. D. J. [1] The Workmen's Compensation Law of the state of Louisiana (Act No. 20 of 1914, as amended by Act No. 243 of 1916

7-Vol. IX-Comp.

and Act No. 38 of 1918) is constitutional. Paragraph 3 of section 3 of this law is broad and sweeping enough in its terms to embrace a minor under the age of 18 years, and consequently the plaintiff in this case, who entered the employment of the defendant without expressly stipulating against the application of said section 3, is bound by its provisions unless he relieves himself from the presumption of section 3 as provided by paragraphs 4 and 6. Admittedly no such election to terminate the provisions of paragraph 3 was exercised by the plaintiff in the manner provided by paragraph 6 prior to the injury. Paragraph 4 of section 3 provides that any agreement or election for the operation of the provisions of the act may be terminated by either party to the contract of hiring giving written notice to the other party not less than 30 days prior to the accident that the provisions of the act shall not apply.

[2] It seems very clear, under said paragraph 3, that when an employee begins work without expressly stipulating against the provisions of the act, it becomes effective by operation of a legal presumption. After the act takes effect as to any employment, it can only be terminated by "written notice given not less than 30 days prior to the accident to the other party." Of course the act cannot be "terminated" unless its operation has previously begun. The right to terminate the operation of the act is "a right, privilege or election" which accrues to the employee under the act, but by paragraph 4 of section 3 this termination must take place by written notice not less than 30 days prior to the accident. This is a limitation of time provided in the act within which the right to terminate the operation of the act shall expire. It applies to all persons over the age of 18 years mentally competent to act for themselves and to all minors and persons non compos mentis who have a curator or tutor, but, under section 16, "in case an injured employee is mentally incompetent or a minor" at the time when the right to terminate the operation of the act accrues to him, "no limitation of time" shall run so long as such incompetent has no curator or tutor.

The plaintiff in this case is an injured employee and a minor under the age of 18 years without a curator or tutor. It is, therefore, difficult to see why, under said paragraph 6, his father cannot elect, even after the injury, to terminate the provisions of the act with reference to his injury when section 16 provides that in case an injured employee is a minor at the time when any right, privilege, or election accrues to him under the act, his duly qualified curator or tutor may, in his behalf, claim and exercise such right, privilege, or election, and that "no limitation of time" shall run so long as such minor has no curator or tutor. The only limitation of time on the right to terminate is that provided in said paragraph 4. It is worthy of comment that notice to terminate an agreement to work under the act requires 30 days' time prior to the accident under paragraph 4, but an employee who has given notice to his employer, or an employer who has given notice to his employee, that he elects not to be subject to the provisions of the act, may waive such election, under paragraph 5, "by a notice in writing which shall take effect immediately."

This shows an intention on the part of the lawmakers to facilitate the operation of the act. In the first place, under said paragraph 3. in the incipiency of the employment, the burden of preventing the act from operating is placed upon the party objecting to its provisions, and inaction on the part of both gives effect to the act. In the second place. when the act has once taken effect by any agreement or election, express or implied, it requires written notice not less than 30 days prior to the accident to the other party that the provisions of the act shall no longer apply. But, on the other hand, under said paragraph 5, when one of the parties has elected not to be under the act, he may