Haynes v. James H. Carr, Inc., 13701.

• Decision Date: 26 May 1970
• Docket Number: No. 13701.,13701.
• Citation: 427 F.2d 700
• Parties: Noy HAYNES, Appellant, v. JAMES H. CARR, INC., and Pacific Lumber Inspection Bureau, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

427 F.2d 700 (1970)

Noy HAYNES, Appellant, v. JAMES H. CARR, INC., and Pacific Lumber Inspection Bureau, Appellees.

No. 13701.

United States Court of Appeals, Fourth Circuit.

Argued March 6, 1970.

Decided May 26, 1970.

Leonard B. Sachs, Norfolk, Va. (Kanter & Kanter, Norfolk, Va., and Allen, Allen, Allen and Allen, Richmond, Va., on the brief), for appellant.

Henry H. McVey, III, Richmond, Va. (McGuire, Woods & Battle, Richmond, Va., on the brief), for appellee James H. Carr, Inc.

Andrew W. Wood, Richmond, Va. (L. Paul Byrne and Bremner, Byrne & Baber, Richmond, Va., on the brief), for appellee Pacific Lumber Inspection Bureau.

Before SOBELOFF, BOREMAN, and BUTZNER, Circuit Judges.

BUTZNER, Circuit Judge:

This appeal raises two issues: first, whether Noy Haynes' tort action against James H. Carr Company is barred by Virginia's Workmen's Compensation Act; and second, whether the district court acquired personal jurisdiction over Pacific Lumber Inspection Bureau under Virginia's long arm statute. The district judge, applying Virginia law because jurisdiction is based on diversity of citizenship, held for Carr and the Inspection Bureau. We affirm his dismissal of the action.

I.

Haynes, a carpenter employed by Earl M. Childrey, Inc., was injured by the collapse of a roof truss on a church Childrey was constructing. Haynes received compensation for his injuries from his employer. He then brought this action against Carr, who had fabricated the truss, alleging negligence and breach of warranty. Whether Haynes has a cause of action against Carr turns on the status of Carr. If the Carr Company was solely a supplyman and a deliveryman, Haynes may sue it because it is an "other party" within the meaning of the Compensation Act Va.Code Ann. § 65.1-41 (1968 Repl. Vol.). Burroughs v. Walmont, Inc., 210 Va. 98, 168 S.E.2d 107 (1969). Cf. Bristow v. Safway Steel Products, 327 F.2d 608 (4th Cir. 1964). On the other hand, Haynes' right to compensation is his only remedy, and his action against Carr is barred by other provisions of the Act Va. Code Ann. §§ 65.1-40 and 65.1-103 (1968 Repl. Vol.) if Carr was performing work that was part of the trade, business, or occupation of Haynes' employer. Doane v. E. I. Dupont deNemours & Co., 209 F.2d 921 (4th Cir. 1954); Bosher v. Jamerson, 207 Va. 539, 151 S.E.2d 375 (1966).

Consulting engineers, working in conjunction with the building's architect, prepared the designs and specifications for the trusses. The plans allowed the trusses to be fabricated either in a shop or at the job site. Childrey, the successful bidder for the job, subcontracted with Carr for the trusses. Carr elected to cut the lumber and drill holes for connecting devices at its shop. It then shipped the unassembled trusses to the job site. Its employees, under the supervision of its field superintendent, came to the job site, assembled the trusses and stacked them as directed by Childrey's superintendent. Childrey's employees later placed them in the building by the use of a crane operated by another subcontractor.

The evidence disclosed that about one-third of the general contractors in the area fabricated trusses themselves, while others subcontracted the work to specialists, such as Carr. Although Childrey had not built any trusses as large as those in question, it either fabricated trusses itself or subcontracted the work, depending on whether it had sufficient carpenters available to do the job and on the relative cost of subcontracting. The district court found that the work performed by Carr was simple carpentry work, which could have been done by Childrey's employees using tools that were readily available.

Of course, if Carr had placed the trusses in the building, there would be no doubt that it was engaged in the general contractor's work. Bosher v. Jamerson, 207 Va. 539, 151 S.E.2d 375 (1966). But the fact that Carr did not place them in the building does not prove the converse to be true — that is, that it was not engaged in the general contractor's work. For even if Childrey had built the trusses, they would have been assembled and stacked on the job site just as Carr assembled and stacked them. These were integral steps in the construction of the building.

As the Supreme Court of Appeals, in Burroughs v. Walmont, Inc., 210 Va. 98, 99, 168 S.E.2d 107, 108 (1969), stated, "The gathering of material is of course essential to the construction of a building. So in a sense each supplier of material is engaged in the general contractor's trade, business or occupation. But a line must be drawn to determine who is an `other party' for the purposes of the Workmen's Compensation Act." To draw this line, the district judge relied on two facts: (1) Carr, the subcontractor, was doing work embraced by the general contract at the job site, and (2) Childrey, the general contractor, could have done the work if it had elected not to engage a subcontractor. These facts form an adequate basis for the district judge's ultimate finding that Carr was performing the trade, business, or occupation of Childrey, the general contractor. Accordingly, he correctly concluded that Haynes' remedy was limited to the compensation provided by the Act and that he could not recover damages from Carr. Turnage v. Northern Virginia Steel Corp., 336 F.2d 837 (4th Cir. 1964); Rea's Adm'x v. Ford, 198 Va. 712, 96 S.E.2d 92 (1957).

Haynes relies on Garrett v. Tubular Products, Inc., 176 F.Supp. 101 (E.D Va.1959) and Burroughs v. Walmont, Inc., 210 Va. 98, 168 S.E.2d 107 (1969), which held that the Compensation Act afforded no shelter to third party tort feasors who were simply supplying and delivering materials. But these cases are distinguishable, for the building materials — tubular steel and sheet rock — were beyond the competency of general contractors to fabricate, and they were not partly built or assembled at the job site.

Haynes' argument that the Virginia Workmen's Compensation Act is unconstitutional is foreclosed by Northern P. Ry. v. Meese, 239 U.S. 614, 620, 36 S.Ct. 223, 60 L.Ed. 467 (1916).

II.

The plans and specifications required that all lumber used in the trusses should be either No. 1 southern yellow pine or construction grade Douglas fir graded and marked to show that it would withstand a bending stress of 1500 pounds per square inch. Some of the timber bore the stamp of the Pacific Lumber Inspection Bureau. Haynes alleged that the timber used in the trusses did not meet the specifications, that the Inspection Bureau breached express and implied warranties of fitness, and that it negligently inspected and graded the timber.

The Inspection Bureau has neither a place of business nor agents in Virginia, so Haynes caused process against it to be served on the Secretary of the Commonwealth of Virginia under the state's long arm statute and rule 4(e) of the Federal Rules of Civil Procedure. He asserts that the Bureau knew that the ultimate consumer of timber bearing its mark would rely on the integrity of the mark and the quality of the grade which it indicates. Consequently, he argues that the Bureau, by branding lumber which comes into Virginia, makes a representation in Virginia that the lumber bearing its brand is fit for the purposes for which it has been graded. Stated colloquially, Haynes says the Bureau's brand "speaks" in Virginia.

The Bureau operates a grading service for lumber mills in western United States. Its principal office is in Seattle, Washington, and it maintains branch offices in other western states. The district court held that the Bureau was not subject to service of process in Virginia. It reached this conclusion after finding the following facts:

"It the Bureau is a non-profit service organization. It is a `grading agency for grading lumber for anyone that is dealing in lumber products\' that cares to have its grade stamp or certification. Its operation areas are Washington, Oregon, California, British Columbia, Canada and Alaska. All of its inspectors reside within the above area. It has no agents or officers in any other areas. It has no officers, agents or employees in Virginia, nor has it graded lumber in Virginia. It does not sell or ship lumber or other goods or merchandise, nor does it have any control or interest in where lumber graded by it is sold or used. It did not and does not deal with Carr. All its revenues arise from inspection charges. The charge is based upon the inspector\'s

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