Bassett Furniture Industries, Inc. v. McReynolds
Decision Date | 23 April 1976 |
Docket Number | Nos. 750781 and 750743,s. 750781 and 750743 |
Citation | 224 S.E.2d 323,216 Va. 897 |
Parties | BASSETT FURNITURE INDUSTRIES, INC. v. Robert F. McREYNOLDS. Robert F. McREYNOLDS v. BASSETT FURNITURE INDUSTRIES, INC. Record |
Court | Virginia Supreme Court |
S. D. Roberts Moore, James R. Austin, Roanoke (Gentry, Locke, Rakes & Moore, Roanoke, on brief), for Bassett Furniture Industries, Inc.
R. Reid Young, Jr., Jackson L. Kiser, Robert W. Mann, Martinsville (Young, Kiser, Haskins & Mann, Ltd., Martinsville, on brief), for McReynolds.
Before I'ANSON, C.J., and CARRICO, HARMAN, POFF and COMPTON, JJ.
Robert F. McReynolds (plaintiff), an employee of Industrial Air, Inc. (Industrial), suffered injuries rendering him a paraplegic when he fell through a hole in a floor cut to accommodate a conveyor system Industrial was installing in the Virginia plant of Bassett Furniture Industries, Inc. (Bassett). After receiving workmen's compensation benefits from Industrial, plaintiff filed a motion for judgment against Bassett. Bassett moved to dismiss on the grounds that plaintiff was its statutory employee and that the trial court, therefore, had no jurisdiction over the tort action. Upon stipulation, the trial court heard evidence Ore tenus and, having considered memoranda of law and oral argument, overruled the motion.
A jury was then empaneled and, after three days of testimony, returned a verdict awarding plaintiff $1,000,000 in damages. The trial court sustained Bassett's motion to set the verdict aside as excessive and ordered plaintiff to remit $450,000 or submit to a new trial on damages. Exercising his right under Code § 8--350 (Repl. Vol. 1957), plaintiff accepted remittitur under protest. By final order entered March 13, 1975, incorporating a letter opinion dated February 27, 1975, the trial court awarded judgment to plaintiff in the sum of $550,000. We granted writs of error to both parties.
The jurisdictional question whether plaintiff was Bassett's statutory employee is the threshold issue. That issue turns upon a mixed question of law and fact. The trial court sat as the factfinder, and, insofar as the evidence is in conflict, we view the facts and all inferences reasonably deducible therefrom in the light most favorable to the plaintiff and consider whether the trial court correctly applied the law thereto.
Bassett's principal witness in support of its motion to dismiss was James Minter. His job title at Bassett was 'Chief Engineer', although, as he said, 'I am not an industrial engineer.' The facts underlying the jurisdictional issue are found largely in his testimony.
Bassett is a furniture manufacturer with annual sales of 'something over a hundred and fifty million (dollars)'. Its plants in eight states employ about 7000 workers, 5000 of whom work in Virginia plants. In 1971, Bassett decided to enlarge its plant at Bassett, Virginia, by adding a $3,500,000, five-story warehouse adjacent to one of its existing buildings. Plans and specifications were prepared by Minter and the three other employees in Bassett's 'engineering department'. Bassett 'put these out for bids' and awarded separate contracts to different contractors for construction of the 'building shell', for 'demolition of an existing building', for 'installation of an elevator facility', for installation of 'interior sprinkler work', and for certain other work. Bassett's plans called for installation of a conveyor system serving four floors of the new building and connecting with an existing conveyor system in an existing building. Bassett awarded a $173,722 'turn-key job' contract to Industrial. Minter acknowledged that Industrial was 'an independent contractor to install the conveyor system.' Bassett did not prepare the plans and specifications for this contract but, as Minter said, '(w)e only showed the path of flow and the general arrangement of the conveyor, the specific shop drawings or drives on it and so on were done by Industrial Air', and Industrial supplied all materials. While Bassett did the electrical work and periodically inspected Industrial's work for compliance, it had no control over Industrial's employees and never required any 'specific changes'.
In order for the conveyor to pass from the second floor to the ground floor, it was necessary to cut a hole in the second floor of an existing building. Responsibility for the cutting was not included in Industrial's contract, and Bassett's carpenters did the work. It was this hole through which plaintiff fell while working on the conveyor system. The circumstances surrounding his fall will be considered in Part B.
In the last four years, Bassett had spent about $1,000,000 per year on construction work. However, Bassett had no 'separate construction division' and employed only a 'dozen or 'so' carpenters 'on the maintenance crews' and about 60 electricians. These and other Bassett employees were sometimes called upon to perform certain tasks in connection with new construction projects, but '(t)his would normally be confined to electrical, piping, mechanical work and that type of thing.' Minter testified that 'for the past few years, we have been contracting most all of the work outside and using our people to make modifications to tie in with these.' On 'major projects' involving in excess of $25,000, Bassett's policy was to employ independent contractors, because it was uneconomic to assemble Bassett employees from different plants and take them away from their regular jobs. On projects involving less than $25,000, Bassett did all '(o)r a portion of it, depending on our people and the availability of them and what other jobs they were doing.'
Bassett did not maintain a separate work crew 'for the purpose of conveyor systems'. Minter testified that 'we have the capability' and 'we do some designing and building in our own maintenance shops' but that this is done Minter said that 'we actually build new conveyors' but acknowledged that 'Bassett had never undertaken anything of this magnitude.'
Addressing the jurisdictional issue, Bassett says that when an owner acts as its own general contractor and contracts, in whole or in part, with subcontractors for the performance of construction work, the owner-general contractor becomes a statutory employer and the subcontractor's employees become statutory employees if 'the specific, specialized work being done by the specialty subcontractor and his injured employee is the kind of work which employees of the owner-general contractor usually do.'
Code § 65.1--29 (Repl. Vol. 1973) provides that when an owner 'undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with' a subcontractor 'for the execution or performance by or under such subcontractor of the whole or any part of the work', the owner becomes a statutory employer and the subcontractor's employees become statutory employees of the owner.
Code § 65.1--30 (Repl. Vol. 1973) provides that when a general contractor contracts with an owner to perform work which 'is not a part of the trade, business or occupation of' the owner, and contracts with a subcontractor for the performance 'of the whole or any part of the work', the general contractor becomes the statutory employer of the subcontractor's employees.
Under Code § 65.1--31 (Repl. Vol. 1973), an owner covered by Code § 65.1--29 or a general contractor covered by Code § 65.1--30 becomes the statutory employer of the employees of a secondary subcontractor to whom a primary subcontractor has awarded a subcontract.
These three statutes must be 'read and reconciled with' the language in what is now Code § 65.1--5 (Repl. Vol. 1973). Sykes v. Stone & Webster Eng. Corp., 186 Va. 116, 121, 41 S.E.2d 469, 471 (1947). That language provides that '(n) othing in this act . . . shall be construed to make . . . the employees of an independent contractor the employees of the person . . . contracting with such independent contractor.'
When so read and reconciled:
186 Va. at 122--23, 41 S.E.2d at 472; quoted with approval in Anderson v. Thorington Construction Co., 201 Va. 266, 271, 110 S.E.2d 396, 399--400 (1959).
In Sears, Roebuck & Co. v. Wallace, 172 F.2d 802, 810 (4th Cir. 1949), the court quoted the above passage from Sykes and concluded:
Thus, as owner, simply by acting as its own...
To continue reading
Request your trial-
Virginia College Bldg. Authority v. Lynn
...applied the law thereto." Carmody v. F.W. Woolworth Co., 234 Va. 198, 201, 361 S.E.2d 128, 130 (1987); Bassett Furniture v. McReynolds, 216 Va. 897, 899, 224 S.E.2d 323, 324 (1976). As a mixed question of law and fact, the determination of Regent's primary purpose presented factual issues f......
-
Richmond Newspapers, Inc. v. Lipscomb
...verdicts 9 because it saw and heard the witnesses while we are confined to the printed record. Bassett Furniture v. McReynolds, 216 Va. 897, 912-13, 224 S.E.2d 323, 332-33 (1976). We do not find from this record that the trial judge plainly abused his discretion in setting aside the award o......
-
Tune v. Synergy Gas Corp.
...part of the plaintiff's arguments. Defense arguments here were much more detailed than those found in Bassett Furniture Indus. v. McReynolds, 216 Va. 897, 224 S.E.2d 323, 330 (1976), where the defendant was held to have sufficiently raised the issue of damages in his argument to permit the ......
-
Farish v. Courion Industries, Inc.
...172 F.2d 802 (4th Cir.1949); Slusher v. Paramount Warrior, Inc., 336 F.Supp. 1381 (W.D.Va.1971); Bassett Furniture Industries, Inc. v. McReynolds, 216 Va. 897, 224 S.E.2d 323 (1976); Shell Oil Co. v. Leftwich, 212 Va. 715, 187 S.E.2d 162 (1972); Anderson v. Thorington Construction Co., 201 ......
-
4.11 Trial: Preliminaries and Incidents
...See, e.g., Lynchburg Coca-Cola Bottling Co. v. Reynolds, 215 Va. 1, 205 S.E.2d 396 (1974); Bassett Furniture Indus., Inc. v. McReynolds, 216 Va. 897, 224 S.E.2d 323 (1976) ($1,000,000 to $550,000); LaVay Corp. v. Dominion Fed. Sav. & Loan Ass'n, 645 F. Supp. 612 (E.D. Va. 1986), rev'd in pa......
-
8.1 Introduction
...(quoting Arthur Larson, The Law of Workmen's Compensation, Vol. 1A, § 49.12, at 872-73).[29] Bassett Furniture Indus., Inc. v. McReynolds, 216 Va. 897, 902, 224 S.E.2d 323, 326 (1976).[30] Evans v. Hook, 239 Va. 127, 131, 387 S.E.2d 777, 779 (1990); see also Hudson v. Jarrett, 269 Va. 24, 2......
-
2.6 Condemnation Proceedings Generally—title 25.1 of the Virginia Code
...217 Va. 627, 231 S.E.2d 324 (1977); West v. Anderson, 186 Va. 554, 42 S.E.2d 876 (1947).[268] 217 Va. 627, 231 S.E.2d 324 (1977).[269] 216 Va. 897, 224 S.E.2d 323 (1976) (common law action discussing principles the court used to determine whether trial judge abused his discretion).[270] Id.......
-
2.2 Employer-employee Relationship
...Act since he was not employed in the usual trade, business, or occupation of the employer); Bassett Furniture Indus., Inc. v. McReynolds, 216 Va. 897, 224 S.E.2d 323 (1976) (finding that Bassett was not a statutory employer with regard to employees of an independent contractor); see also St......