Barnhart v. American Oil Company

Decision Date22 January 1965
Docket NumberCiv. A. No. 857.
PartiesCalvin G. BARNHART, Plaintiff, v. AMERICAN OIL COMPANY, Defendant.
CourtU.S. District Court — Eastern District of Virginia

COPYRIGHT MATERIAL OMITTED

Ralph T. Baker, William McL. Ferguson, Newport News, Va., for plaintiff.

Vandeventer, Black, Meredith & Martin, Hugh S. Meredith, Norfolk, Va., for defendant.

WALTER E. HOFFMAN, Chief Judge.

On January 29, 1960, the plaintiff, a tank-truck driver employed by J. W. Hornsby's Sons, Inc. (Hornsby), was injured when he fell from the top of a gasoline tank-truck owned by Hornsby, while plaintiff was in the process of loading fuel oil at the Yorktown Refinery of the defendant, American Oil Company.

Aside from the question of damages the issues are (1) whether plaintiff was a "statutory employee" of American Oil Company by reason of American's relationship with Hornsby; (2) the negligence if any, of American Oil Company; and (3) the contributory negligence, if any, of plaintiff Barnhart. We will consider these issues in the order stated.

The defendant urges that, by reason of the close relationship between American and Hornsby, the latter's employees are American's employees as well and that American is entitled to the umbrella of protection afforded by the Virginia Workmen's Compensation Act, § 65-1 et seq., Code of Virginia, 1950, as amended, in that plaintiff was engaged in carrying on the trade, business or occupation of American when the accident took place. To appreciate this contention it is necessary to examine the relationship existing between American and Hornsby.

The last written contract between Hornsby and American is dated June 4, 1953, at which time American maintained a terminal at Norfolk. While there have been some modifications of the contract which continues to run on a year to year basis, and American has constructed its Yorktown Refinery in the interim period, the arrangement existing at the time of plaintiff's accident is essentially the same. The contract refers to American as the "seller" and Hornsby as the "buyer". It provides that title to the product and the risk of loss passes to Hornsby when the product enters the tank cars of Hornsby, F.O.B. American's shipping points. It states that Hornsby's equipment must be painted in American's colors and should display American's trade names in accordance with American's approved standards.

Hornsby operates a fleet of service stations handling Amoco products throughout the Peninsula area. Three or four filling stations were leased to Hornsby by American but the latter had nothing to do with the operation of the business at these leased stations. The remaining stations, approximately 60 in number, were owned by Hornsby. As may be anticipated, American had nothing to do with the hiring or firing of any of Hornsby's employees and the tank-truck drivers were under no orders from American. Hornsby's employees were exclusively on Hornsby's payroll; their salaries and hours of work were fixed by Hornsby; their routes and destination points were according to Hornsby's needs and directions. As noted above, when the defendant's product was placed in a Hornsby truck, it then belonged to Hornsby. The price was fixed by Hornsby and all cost of delivery of the fuel product was assumed by him.

At rare intervals Hornsby was requested to deliver American's products to the latter's large national accounts. In such event Hornsby was contacted and he would fix the charges for these deliveries.1 However, Hornsby was not a contract hauler.

American maintains and operates several bulk storage plants throughout Eastern Virginia. The Yorktown Refinery ships petroleum products by common carrier to these bulk storage plants, from which point the customary method of distributing is through jobbers like Hornsby. On shipments made from Yorktown to the bulk storage plant, title to the product remained with American until such time thereafter as it was sold to the jobber who, in turn, resold the product to the filling station.

American furnished all of the large torsional signs at Hornsby's service stations (whether leased or owned by Hornsby). It likewise supplied the plastic decal "bellybands" that go around the fuel pumps. All jobbers such as Hornsby were required to use the name "American" and to paint the station's appurtenances in American's colors. With respect to advertising, it is generally a three-way split with American assuming part of the cost, Hornsby assuming a portion of same and Hornsby's dealer (or lessee of the filling station) taking over the balance of the cost. There are approximately 62 American owned and operated filling stations throughout Virginia.

Defendant, contending that Barnhart was not a stranger to the business of American and that his sole remedy is under the Virginia Workmen's Compensation Act, points to this close relationship with Hornsby and argues that American's business was the sale and distribution of fuel products. It is, of course, the settled rule in Virginia that one who is engaged in the trade, business or occupation of another, when engaged as a subcontractor, falls under the protective canopy of the Workmen's Compensation Act. In certain instances this is true even if the party is an independent contractor. Walker v. United States Gypsum Co., 4 Cir., 270 F.2d 857, cert. den. 363 U.S. 805, 80 S.Ct. 1240, 4 L.Ed.2d 1148; McCann v. Newport News Shipbuilding and Drydock Co., E.D.Va., 177 F.Supp. 909; Doane v. E. I. DuPont de Nemours & Co., 4 Cir., 209 F.2d 921; Rea v. Ford, 198 Va. 712, 96 S.E.2d 92; Williams v. E. T. Gresham Co., 201 Va. 457, 111 S.E.2d 498; Lucas v. Biller, 204 Va. 309, 130 S.E.2d 582.

In Floyd v. Mitchell, 203 Va. 269, 123 S.E.2d 369, the plaintiff's intestate was an employee of Glamorgan Pipe and Foundry Company. Mitchell, the defendant, was an employee of Powell, a contract carrier, who had been hired by Glamorgan to load and haul pipe. Plaintiff's intestate assisted Mitchell in the loading operation and, in addition, a Glamorgan crane operated by Glamorgan's employees was used to assist in loading the pipe. While on Glamorgan's yard, plaintiff's intestate was killed when Mitchell backed a tractor over him. Plaintiff brought suit against Mitchell and Powell. In holding that Mitchell was performing a task which was a part of Glamorgan's trade, business or occupation, and that the rights of plaintiff's intestate were governed by the Workmen's Compensation Act, the Supreme Court of Appeals stated the rule as follows:

"The test is not whether the owner, by engaging an independent contractor to perform some part of his business, thereby engages in the business of the independent contractor. It is whether the independent contractor is performing work that is part of the trade, business or occupation of the owner."

Stated otherwise, as applied to this case, was Hornsby engaged in performing work that was a part of the trade, business or occupation of American?

Substantially the same language as quoted above from Floyd v. Mitchell, supra, will be found in Sears Roebuck & Co. v. Wallace, 4 Cir., 172 F.2d 802.

In Anderson v. Thorington Construction Co., 201 Va. 266, 110 S.E.2d 396, the plaintiff was a consulting engineer while working on the Richmond-Petersburg Turnpike. The defendant, also an independent contractor, was doing work on the same project. The court held that both the plaintiff and defendant were engaged in the trade, business or occupation of the Turnpike Authority, and since neither was a "stranger" to the work, the litigants and the Authority were under the canopy of the Workmen's Compensation Act, and the defendant-contractor was not an "other party" within the meaning of the Act pertaining to rights of an injured employee against an "other party." Cf. Sykes v. Stone & Webster Engineering Corporation, 186 Va. 116, 41 S.E.2d 469.

We fully recognize that the line of demarcation in these matters is indeed narrow. Under certain circumstances it may conceivably be extended to the point of no return. For example, A. C. Shackelford & Son distributes American's products in Gloucester and Mathews counties as a sub-distributor under Hornsby, but has no direct relationship with American. When Shackelford sends its tank-trucks to American's Yorktown Refinery, the product is billed to Hornsby who, in turn, bills Shackelford. Hornsby, operating a substantial business on the Peninsula between Hampton and Richmond, could establish a chain of sub-distributors and, according to the defendant, each employee of a sub-distributor would become a statutory employee of American, even though American has no right of control or direction as to the amount of products accepted and/or delivered by Hornsby or any sub-distributor; nor did American have anything to do with the selection of site locations for the retail sale of its products.2 Moreover, Hornsby, maintaining its independent status, has never handled batteries, tires and accessories for or in behalf of American; Hornsby having elected to formulate and operate the Hornsby Tire Company in competition with American which handles the Atlas tire. Manifestly it cannot be successfully urged that a filling station attendant, injured while engaged in pumping fuel oil from a Hornsby tank-truck into a filling station tank, would be a statutory employee of American; whereas the same attendant, injured while changing a customer's tire and replacing same with a Hornsby tire, would not fall within the same category.

Undeniably American is engaged in the business of producing and marketing gasoline and petroleum products and, while its ultimate objective is to place its products in the hands of the consumer public, this is true as to every manufacturer of a product, whatever the nature of the same may be. It does not follow that the salesman handling a manufactured product which reaches the consumer public through a retail store is the statutory employee...

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