Bamber v. City Of Norfolk
Decision Date | 17 January 1924 |
Citation | 121 S.E. 564 |
Parties | BAMBER. v. CITY OF NORFOLK. |
Court | Virginia 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., 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 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:
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:
(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...
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...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 ......
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