Bamber v. City Of Norfolk

Decision Date17 January 1924
Citation121 S.E. 564
PartiesBAMBER. v. CITY OF NORFOLK.
CourtVirginia Supreme Court

Appeal from Circuit Court, Nausemond County.

Proceedings under the Workmen's Compensation Act by Mary D. Bamber, in her own right and as guardian of Jessie Bamber and Gladys Bamber, for compensation for death of husband and father, F. P. Bamber, opposed by the City of Norfolk, alleged employer. From order setting aside award of Industrial Commission, the claimant appeals. Affirmed.

This is an appeal by the claimant, Mary D. Bamber, in her own right and as guardian of the infant children mentioned in the caption, from the decision of the court below setting aside the award of the Industrial Commission of the claim of petitioner against the defendant, the city of Norfolk, under the Workmen's Compensation Law in force on August 18, 1922, the date of the accident and death resulting therefrom of F. P. Bamber, the husband of the claimant and father of the children (Acts 1918, p. 637 et seq., as amended by Acts 1920, p. 256 et seq., and Acts 1922, p. 741 et seq.), of compensation from the city for the injury which resulted in such death.

The findings of fact of the Industrial Commission, so far as material, were as follows:

"The deceased (F. P. Bamber), whose widow, Mary D. Bamber, is the principal claimant in this case, was an employee of a Mr. Birchett, who, under a written contract with the city of Norfolk, was engaged in erecting a standpipe outside of the said city. The standpipe was a necessary portion of the works incident to the city's water supply. On August 18, 1922, the employee, F. P. Bamber, fell from a scaffold and was killed. The death arose out of and in the course of the employment. * * * The only controversy was whether or not Birchett was a subcontractor of the city within the meaning of section 20 of the Compensation Act. If he was, then the claimant might properly look to the city as the principal for compensation under that section of the Compensation Act. Pursuant to this contention considerable testimony was taken, briefs were filed, and the contract was introduced. The tendency of the evidence and of the arguments in briefs appears to be to establish that Birchett was an independent contractor. * * *

"In its proprietary capacity the city of, Norfolk is engaged in maintaining a water system and in selling water to its inhabitants. The city owns all equipment, pipe lines, pumping stations, and even the sources of water supply. A usual and necessary incident to maintaining a water system is the repair of old pipe lines, establishing new lines, and maintaining in general all of its works. Enlargements with the necessary construction are frequent as the population of a city grows. The building of a standpipe is a necessary incident to the maintenance of the proper pressure throughout the water mains • • * that the foundation for the standpipe was laid by the city."

The conclusion of law of the Industrial Commission, so far as material to be stated, was "that Birchett was a subcontractor of the city of Norfolk within the meaning of section 20" of the Compensation Act, which was, in effect, the holding that the city was liable as "principal contractor" under such section of such statute.

Upon the appeal to the court below by the city of Norfolk that court by final order set aside the aforesaid award, and from that order the pending appeal was allowed.

W. S. Morris, Jr., of Norfolk, and Frank W. Rogers, of Roanoke, for appellant.

R. W. Peatross and Jno. B. Jenkins, Jr.. both of Norfolk, for appellee.

SIMS, J., after making the foregoing statement, delivered the following opinion of the court:

The questions presented by the assignments of error will be disposed of in their order as stated below.

1. Is the city of Norfolk liable in the instant case as "principal contractor" under section 20 (a) of the Workman's Compensation Law, as the act stood when the accident and death involved occurred?

The question must be answered in the negative.

Said section 20 (a) has not been amended, and it stood at the time of the accident and death involved in the instant case, and still stands, as originally enacted (Acts 191S, at pages 641, 642), and is as follows:

"Sec. 20 (a). Where any person (in this section referred to as principal contractor) undertakes to execute any work, which is a part of his trade, business or occupation or which he has contracted to perform, and contracts with any other person (in this section referred to as subcontractor) for the execution by or under the subcontractor of the whole or any part of the work undertaken by such principal contractor, the principal contractor shall be liable to pay to any workman employed in the work any compensation under this Act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal contractor, then, in the application of this Act, reference to the principal contractor shall be substituted for reference to the subcontractor, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the subcontractor by whom he is immediately employed."

This section itself defines who is a "principal contractor" within its meaning, namely, "any person" (who) "undertakes to execute any work, which is a part of his trade, business or occupation, or which he has contracted to perform, and contracts, " etc. It is obvious that the city in the instant case did not contract to perform the work, so that we may eliminate from our consideration the language "or which he has contracted to perform." The definition would then read that a principal contractor is "any person [who] undertakes to execute any work, which is a part of his trade, business or occupation * * * and contracts, " etc. Does this mean any person, who, as owner, undertakes to have any work executed for him by another, not as an employee, but as an independent contractor, which work is not yet "a part of, " but which, when completed, is intended to be used in the owner's trade, business, or occupation? We do not think so. If the language means that, it would embrace all owners who have any work executed for themselves by an independent contractor when the work is intended to be used, when completed, in the owner's trade, business, or occupation, as the section is not confined in its application to municipal owners, but embraces all other owners in the same situation, if it embraces any owners in that situation. Further, if "undertakes to execute" could be given the meaning of "undertakes to have executed, " that would be to disregard the express provisions of the section that to constitute any person a "principal contractor, " within the meaning of the section, he must be one who

undertakes to execute a work "which is a part of his trade, business or occupation, " i. e., such work as is a part of his trade, business, or occupation to execute; which negatives the construction that the work mentioned is every work which is intended to be used, when completed, in the trade, business, or occupation of the person for whom it is executed.

To give to the section the meaning that a principal contractor is any one who, although the owner, undertakes to have any work executed for himself, not by the employment of workmen, but by contracting for the result with an independent contractor, would result in construing section 20 (a) as designating any workman employed in the. execution of any work as entitled to compensation from the person who would be the owner of the work when completed, who intends to use it in his trade, business, or occupation. That is to say, this would be a classification of persons liable and of workmen embraced under the act based solely on the future use to which the work is to be put, when completed, in the execution of which the workman is employed, irrespective of whether the relationship of master and servant exists, or" does not exist, between the owner and the workman. We find no such classification in section 20 (a);nor in any other provisions of the act.

As said by this court in Mann v. Lynchburg, 129 Va. 453, at page 459, 106 S. E. 371, 373:

"It would seem clear from the history and purposes and general provisions of the act that the Legislature did not have in mind as beneficiaries any other persons than such as are commonly understood as falling within a contractual relationship of master and servant. It often happens that cities and towns employ large forces of men in connection with municipal undertakings, such as the construction of sewers, the building of streets, the operation of rock quarries and other similar and more or less hazardous occupations akin to those undertaken by individuals and industrial corporations. The Legislature undertook to make an improvement upon the remedies hitherto existing in cases of employees receiving personal injuries, and who might or might not, according to the particular facts of the case, have a cause of action against the employer on the ground of negligence or breach of duty, and manifestly the idea was that this remedy should be provided for those who theretofore stood in such a relationship as that there might be in cases of negligence a liability on the employer." (Italics supplied.)

And we think that it appears from the terms of section 20 (a) aforesaid, itself, when construed along with the general provisions of the act, other than the amendment to section 12, presently to be mentioned, that section 20 (a) was not intended to apply to any owner, but only to some independent contractor who undertakes to do such work asis mentioned in the section for an owner or some one else, which independent contractor sublets the work or some part of it to at least one other independent contractor, who employs the' workman mentioned in the section upon the work which is sublet. In other...

To continue reading

Request your trial
19 cases
  • Walker v. United States Gypsum Company
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • October 5, 1959
    ...of industrial accidents. Originally, however, Virginia's act did not expressly subject an owner to its obligations. In Bamber v. City of Norfolk, 138 Va. 26, 121 S.E. 564, the Supreme Court of Appeals of Virginia, pointing to the fact that the act did not reach "owners," held that the City ......
  • Holt v. Bowie, Civ. A. No. 70-C-113-A.
    • United States
    • U.S. District Court — Western District of Virginia
    • June 1, 1972
    ...this Act which he would have been liable to pay if the workman had been immediately employed by him. The case of Bamber v. City of Norfolk, 138 Va. 26, 121 S.E. 564 (1924) is on point with the present case. In that case the city operated a waterworks and contracted with an independent contr......
  • Bright v. Reynolds Metals Co.
    • United States
    • Supreme Court of Kentucky
    • February 2, 1973
    ...Coal and Lumber Company v. Georgia Casualty, 222 Ky. 683, 2 S.W.2d 383. Priby v. Lee, 191 A. 105, 15 N.J.Misc. 292; Bamber v. City of Norfolk, 138 Va. 26, 121 S.E. 564; Falsey v. Eastman, 22 A.D.2d 1003, 254 N.Y.S.2d The conclusion is inescapable that Reynolds, as an owner of premises contr......
  • Hughes v. Palatine Ins. Co.
    • United States
    • South Carolina Supreme Court
    • December 13, 1924
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT