Anderson v. Thorington Const. Co.

• Decision Date: 12 October 1959
• Docket Number: No. 4986,4986
• Parties: THRAVES LOCKETT ANDERSON v. THORINGTON CONSTRUCTION COMPANY INCORPORATED. Record
• Court: Virginia Supreme Court

Page 396

110 S.E.2d 396

201 Va. 266

THRAVES LOCKETT ANDERSON v. THORINGTON CONSTRUCTION COMPANY INCORPORATED.

Record No. 4986.

Supreme Court of Appeals of Virginia

October 12, 1959.

George E. Allen, Sr. and Frank C. Maloney, III (Allen, Allen, Allen & Allen, on brief), for the plaintiff in error.

Richard L. Williams (Richard N. Harris; Bremner, Parker, Neal, Harris & Williams, on brief), for the defendant in error.

JUDGE: DGGLESTON

EGGLESTON, C.J., delivered the opinion of the court.

Thraves Lockett Anderson, sometimes hereinafter called the plaintiff, filed an action at law against Thorington Construction Company, Incorporated, hereinafter referred to as Thorington or the defendant, to recover damages for personal injuries alleged to have been caused by the negligence of the defendant's servants during the construction of a portion of the Richmond-Petersburg Turnpike. The plaintiff alleged that at the time of his injuries the defendant was engaged in certain construction work on the turnpike under a contract with the Richmond-Petersburg Turnpike Authority, and that he, the plaintiff, was performing his duties as a project inspector for Parsons, Brinckerhoff, Hall & MacDonald, consulting engineers for the Authority.

The defendant filed a special plea alleging that the lower court was without jurisdiction of the action at law because, it said, the matter was within the exclusive jurisdiction of the Industrial Commission of Virginia. After hearing evidence on the issues raised by the plea the lower court entered a final judgment sustaining the plea and dismissing the action. We granted the plaintiff a writ of error.

The facts are not in dispute. By the Act of the General Assembly of 1954, ch. 705, p. 920, ¹ the General Assembly created the Richmond-Petersburg Turnpike Authority, hereinafter referred to as the Authority, as a 'political subdivision of the Commonwealth,' to exercise 'the powers conferred * * * in the construction, operation and maintenance of the turnpike project' which was to be deemed 'to be the performance of an essential governmental function.' Among other things, the Authority was authorized to determine the location of the turnpike project, to obtain title to the right of way by purchase or under its power of eminent domain, 'to construct, maintain, repair and operate the turnpike project,' to issue revenue bonds for financing the project, and in general to do all other acts and things necessary or convenient 'to carry out the powers expressly granted' to it. It was empowered to sue and was subject to be sued.

Pursuant to these grants of power the Authority contracted with Parsons, Brinckerhoff, Hall & MacDonald, an engineering firm of the city of New York, hereinafter referred to as the Engineers, to provide the services of consulting engineers for the project. The work of the Engineers consisted of a preliminary stage, followed by the preparation of all contract plans and specifications for the turnpike. Then, as these plans and specifications were approved by the Authority and construction work begun, it became the duty of the Engineers to see that the construction was performed in accordance with the approved specifications. To carry out this latter phase of its work the Engineers employed resident engineers and inspectors to supervise and inspect each project involved in the construction of the turnpike. The plaintiff, Anderson, was among those employed by the Engineers for this purpose.

Since the Authority had no force of employees by which it could do the necessary construction work, it awarded the construction of various sections of the work to a number of contractors. Thorington and two other contractors, combined as joint adventurers, were awarded the contract to perform a section of this work. It was during the performance of this contract which was being supervised by Anderson on behalf of his employer, the Engineers, that Anderson was injured.

Under the terms of their contracts with the Authority each contractor, including the Engineers, was required to carry workmen's compensation insurance for its own employees. The Authority also carried such insurance. Consequently, when Anderson, the plaintiff, was injured, the Authority, the Engineers and Thorington were covered by workmen's compensation insurance. Anderson was paid workmen's compensation benefits by the compensation insurance carrier for the Engineers, his employer. Thereafter he brought this suit against Thorington, the party allegedly responsible for his injuries.

Upon the evidence submitted on the issues raised by the special plea the lower court found that both Thornington and the Engineers were independent contractors with and under the Authority. Hence, the critical question is whether under the relationship of the parties and the circumstances stated, the plaintiff, an employee of the Engineers, one independent contractor on the project, may maintain an action at law against Thorington, another independent contractor on the project, to recover damages for his injuries caused by the negligence of the servants of the defendant independent contractor, or whether the plaintiff's right to recover workmen's compensation benefits is his exclusive remedy.

The determination of the question depends upon the interpretation and application of the pertinent provisions of the Workmen's Compensation Act embodied in the Code sections printed or referred to in the margin. ²

In Sykes v. Stone & Webster Engineering Corp., 186 Va. 116, 41 S.E.2d 469, we held that the employee of a subcontractor could not maintain against the principal contractor a common-law action for damages for personal injuries. We there pointed out that Section 65-5 (then the last paragraph of § 12 of the Act as amended), providing that the employees of an independent contractor are not the employees of the person who employed the independent contractor, must be read and reconciled with Sections 65-26 to 65-28, both inclusive (then § 20(a) of the Act as amended), which make the owner, contractor and subcontractor, respectively, liable for compensation benefits, and that if the workman is doing work which the owner has undertaken to perform as a part of his own trade, business or occupation, the owner is liable to the workman for compensation. On the other hand, we said that if the work which the workman is doing is not a part of the trade, business or occupation of the owner, and the owner contracts with a contractor to do it, the contractor, but not the owner, is liable to the workman for compensation under the Act. 186 Va., at pages 121, 122, 41 S.E.2d, at pages 471, 472.

We further pointed out that the 'other party' who is amenable to a common-law action by an employee under Section 65-38 'refers exclusively' to one who is a stranger to the employment and the work and does not include one who has accepted the Act and is within the express terms of Section 65-99. (186 Va., at pages 120, 121, 41 S.E.2d, at page 471.) Continuing, we said:

'It clearly appears to be the purpose of section 20(a) [now §§ 65-26 to 65-31] to bring within the operation of the Compensation Act all persons engaged in any work that is a part of the trade, business or occupation of the original party who undertakes as owner, or contracts as contractor, to perform that work, and to make liable to every employe engaged in that work every such owner, or contractor, and subcontractor, above such employe. But when the employe reaches an employer in the ascending scale, of whose trade, business or occupation the work being performed by the employe is not a part, then that employer is not liable to that employe for compensation under section 20(a). At that point paragraph 5 of section 12 [now § 65-5] intervenes and the employe's right of action at common law is preserved.' 186 Va., at pages 122, 123, 41 S.E.2d, at page 472.

These principles were reaffirmed in Rea v. Ford, 198 Va. 712, 96 S.E.2d 92, in which we held that the personal representative of an employee of a principal contractor could not maintain an action for wrongful death against a subcontractor because such contractors were not strangers to the employment and the work and were under the canopy of the Act. 198 Va., at page 717, 96 S.E.2d, at page 96.

On the other hand, in Kramer v. Kramer, 199 Va. 409, 100 S.E.2d 37, we held that where two independent contractors were engaged in constructing a church, the personal representative of one independent contractor might maintain an action for wrongful death against the other independent contractor, because the work of building the church was not a part of the trade, business or occupation of the church so as to make it liable for compensation under Section 65-26.

In the present case both independent contractors, Thorington and the Engineers, were engaged in the construction of the turnpike which was a part of the trade, business or occupation of the owner, the Authority. As the trial court aptly pointed out in its written opinion:

'* * * While the ultimate end and object of the Legislature in creating the Authority was to have it operate the turnpike as a toll road, it is wholly illogical to contend that such purpose was the paramount and sole end and object. It is no less a function of the Authority to acquire title to the right of way, to construct the turnpike, to repair and maintain it, than it is to operate the facility, after the acquisition of the right of way and the construction of the turnpike.

'In a very real sense, the Authority was engaged at every step of the way, in the course of its usual trade, business or occupation, from the preliminary surveys, through the acquisition of the right of way, the construction, and the final operation, maintenance and repair of the turnpike. The Legislature has so declared by vesting it with the power and charging it with the responsibility of so doing.'

Since both Thorington and the Engineers were engaged in...