Sears, Roebuck & Co. v. Wallace

• Decision Date: 28 January 1949
• Docket Number: No. 5819.,5819.
• Citation: 172 F.2d 802
• Parties: SEARS, ROEBUCK & CO. v. WALLACE.
• Court: U.S. Court of Appeals — Fourth Circuit

172 F.2d 802 (1949)

SEARS, ROEBUCK & CO. v. WALLACE.

No. 5819.

United States Court of Appeals Fourth Circuit.

January 28, 1949.

L. S. Parsons, of Norfolk, Va. (Venable, Parsons, Kyle & Parsons, of Norfolk, Va., on the brief), for appellant.

John S. Rixey, of Norfolk, Va. (Rixey & Rixey, of Norfolk, Va., on the brief), for appellee.

Before SOPER and DOBIE, Circuit Judges, and WYCHE, District Judge.

SOPER, Circuit Judge.

This suit was brought to recover damages for injuries suffered by the plaintiff when he attempted to close the doors of an elevator in the defendant's warehouse in Norfolk. The evidence on behalf of the plaintiff indicated that he was on the premises as an employee of a subcontractor who had undertaken to make certain alterations to the building; that by reason of the defective condition of the elevator the doors remained open after it had left the floor on which the plaintiff was standing; and that his hand was caught by the doors and permanently injured when he attempted to close them in order to protect his fellow workmen. The jury found for the plaintiff in the sum of $5,000.

The grounds on which the defendant relied in the District Court and in this court on this appeal are twofold: (1) that the defendant was not guilty of actionable negligence in failing to keep the elevator in safe condition, and (2) that under the Workmen's Compensation Act of Virginia, Code 1942, § 1887(1) et seq., the defendant occupied the status of employer of the plaintiff, and as such was liable to make the compensation payments specified in the act and therefore the plaintiff was barred from maintaining this action.

The first defense raises the usual questions that are met in suits of personal injury, and all of them must be answered adversely to the defendant when the evidence is considered, as it must be, in the light most favorable to the plaintiff. Sears, Roebuck and Company was the lessee and occupant of a building in Norfolk which it used for storage purposes. It entered into an agreement with a general contractor for alterations to the building which included closing all the window openings with brickwork. The brickwork was let by the general contractor to a subcontractor who employed the plaintiff as foreman of the bricklayers and other workmen who did the work. There were two elevators in the building both of which were used with the defendant's consent by the employees of the general contractor and subcontractor in the prosecution of the work. The accident occurred on the fourth floor where the elevator doors opened upon a corridor eight feet wide used as a passage for the workmen of the contractors and for their wheelbarrows laden with material. Each elevator door consisted of an upper and a lower section of sheet iron construction which, when open, left an opening into the shaft seven feet wide and eight feet high measured from the floor. When the elevator stopped flush with the floor the door remained closed until the operator separated the two sections manually by pressing down on one and up on the other until they were fully open when they were automatically engaged and held in place by a pin. The sections remained open so long as the elevator was stationary; but when it started up or down the sections automatically came together at a center horizontal line.

On the day of the accident the plaintiff was foreman of a gang of five or six bricklayers and seven laborers on the fourth floor. Additional employees of the general contractor were also working on this floor. The plaintiff was standing in the corridor in front of the elevator in conversation with the superintendent of the general contractor when he noticed that the elevator had gone down and saw that the doors had not closed. In order to close the dangerous opening into the shaft, he caught hold of the lower section and tried to pull it up whereupon the upper section came down suddenly and quickly, and crushed his hand before he could withdraw it.

Difficulty with the elevator doors had been noticed by the contractor's workmen before the accident. Sometimes when it was desired to keep a door open to permit the passage of materials and supplies, it was necessary to weight down the lower section of the door with bricks to keep it from closing; and sometimes the doors would not shut unless the sections were started by hand; indeed the action of the doors was found to be unpredictable. This condition affected both elevators.

This testimony was denied by employees of the defendant who had operated the elevators daily for years, and in addition the defendant produced evidence that the elevators were regularly inspected and were in good condition on the day of the accident. This issue of fact, however, was found against the defendant by the jury which visited the premises in the presence of court and counsel, and rode on the elevators and witnessed a demonstration of the operation of the door by defendant's employees. Obviously there was substantial testimony from which the jury might have inferred that the doors were defective and that knowledge of this condition had been brought home to the defendant.

The defense of contributory negligence on the part of the plaintiff was also made, and it was contended that it was foolhardy and dangerous for one who was not familiar with the operation of the elevators to undertake to close the doors in the manner described instead of reporting the situation to the defendant. Moreover, it is said that the plaintiff was only a volunteer or licensee on the premises, who had no obligation with respect to the operation of the elevators, and hence under the Virginia law, as set out in Goshen Furnace Corporation v. Tolley's Adm'r, 134 Va. 404, 405, 114 S.E. 728, he assumed the risk of the place as he found it and the defendant was under no duty to keep the premises in safe condition for his use and was not liable to him for the mere negligence of its servants but only for injuries wantonly or recklessly inflicted.

The evidence does not support this view of the plaintiff's status when he was hurt. It is not disputed that he was on the premises as a foreman of a gang of men employed by a subcontractor of one who had been engaged by the defendant to make substantial alterations to the building. The plaintiff was therefore not a mere licensee but was on the premises as an invitee to whom the defendant owed the positive duty to use due care to keep safe the appliances under its control with which the plaintiff would normally come in contact in the performance of the work. Nor can it be said that the plaintiff was a mere volunteer in his actions, for he had a duty to protect the men in his charge from obvious danger. Doubtless he might have posted a guard at the opening and notified the defendant of the condition, but his more immediate response to the emergency, even though he was not qualified as an elevator operator, was not so clearly negligent as to justify a mandatory instruction on the question of contributory negligence. The judge properly left this issue to the determination of the jury.

The more difficult question relates to the bearing upon the case of the Virginia Workmen's Compensation Act, § 1887(1) et seq. of the Virginia Code of 1942, and particularly §§ 20(a) and 12 thereof, which are set out in full in the margin.¹ The defendant filed a special plea and motion to dismiss on the ground that the plaintiff was entitled to compensation for his injury under the statute, to be paid by the defendant, if not by the contractor or subcontractor, because the work on which he was engaged was in the language of § 20(a) part of the trade, business or occupation of the defendant; and hence the defendant was not subject to suit for negligence since the first paragraph of § 12 provides that the right of an injured employee to compensation excludes all other rights and remedies at common law or otherwise. The plaintiff has in fact made claim and has been paid compensation by his immediate employer, and this circumstance, under the second paragraph of § 12, operated as an assignment to his employer of any right he may have had to recover damages for the injury against any other party which may be enforced either in the name of the employer or employee; and the pending suit has been brought to enforce that right. The crucial question is whether the work being done at the time of the injury under the contract between the contractor and the defendant was part of the latter's trade, business or occupation for if so, the defendant, as owner, was required by § 20(a) to provide compensation not only for his own employees but also for the workmen of any general contractor or subcontractor, and was relieved by § 12 from liability for the injury in any other suit.

The District Judge reserved the question until after the verdict of the jury on the issue of negligence and then, upon the defendant's motion for judgment non obstante veredicto, considered the question, without objection by the parties, in the light of the undisputed evidence given during the jury trial as to the nature of the work done and the relation of the parties engaged in its performance. The motion to dismiss was denied as the judge was of the opinion that the plaintiff's suit for negligence was not barred, because the defendant was not liable to pay compensation to the plaintiff under the statute as it has been interpreted by the Supreme Court of Appeals of Virginia in Bamber v. City of Norfolk, 138 Va. 26, 121 S.E. 564, and Sykes v. Stone & Webster Eng. Corporation, 186 Va. 116, 41 S.E.2d 469.

In Bamber v. City of Norfolk, supra, it was shown that the city in its proprietary capacity was engaged in maintaining a water system for the convenience of the citizens, and was obliged as a necessary incident of the business to repair old pipe lines and to build standpipes. It entered into a written contract with an independent contractor for the...