Bosher v. Jamerson
Decision Date | 28 November 1966 |
Citation | 151 S.E.2d 375,207 Va. 539 |
Court | Virginia Supreme Court |
Parties | Alton W. BOSHER, individually, etc. v. Norvell T. JAMERSON. |
J. W. Morris, III, Richmond (Jack B. Russell, Browder, Russell, Little & Morris, Richmond, on brief), for plaintiff in error.
Robert Cantor, Richmond (Willard I. Walker, Cantor & Cantor, McGuire, Woods & Battle, Richmond, on brief), for defendant in error.
Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.
We have again the question whether a person who has received workmen's compensation for injuries received during the course of his employment can sue the employer of the tort feasor who caused the injuries.
Norvell T. Jamerson was injured while working for his employer, Re-Com Corporation. The injury happened when Jamerson was struck by a truck owned by Alton W. Bosher and operated by Bosher's employee Fred Granderson. Jamerson applied for and received compensation under the Virginia Workmen's Compensation Act from his employer, Re-Com Corporation, or its insurance carrier. Then Jamerson brought this tort action against Bosher alleging that his injuries were caused by the negligence of Bosher's employee Granderson.
Bosher filed a plea asserting that Jamerson had no right to maintain the action because it was barred by the Virginia Workmen's Compensation Act. After hearing evidence, the trial court overruled the plea by order entered June 24, 1963. Bosher appeals from that order. 1
The trial judge made these findings of fact:
'1. Re-Com, as general contractor, was under contract with Reynolds (Metals Company) to construct an expansion of the latter's Container Development Center, under which contract it was expressly stipulated that Re-Com should supply all labor, materials, equipment and services for the job and in connection therewith was to 'receive, unload, warehouse, and haul to the job site, all material you will supply for the work.'
'2. During the performance of its said contract Re-Com ordered from Southern Materials two loads of sand to be spread beneath the foundation of the project in question. One of these is the load here involved.
'3. Southern Materials had two methods of selling materials, (a) pick up by purchaser at Southern's premises, and (b) delivery by Southern Materials to purchaser at job site. The differential in price was the cost to Southern of delivery to job site. Procedure under method (b) upon reaching job site was to dump or spread at such location and in such manner as directed by purchaser or his representative on the job site.
'4. In the case at bar method (b) was followed.
'5. For delivery of this order--as in the vast majority of all other orders--Southern used a truck and driver furnished by the defendant Bosher. Under the standing arrangement between Bosher and Southern, while Bosher hired, fired and paid the driver of his truck, the driver and truck were under the exclusive control of Sourthern. The driver in this, as in other cases, received his instructions from the Southern dispatcher. Here he was told to deliver his load of sand to the Re-Com job site and to deliver, dump or spread as directed by the Re-Com supervisor.
'6. Upon reaching the job site defendant's driver, Granderson, was told by the Re-Com superintendent to take the load into the foundation area and to spread in a certain manner. He was also told by the superintendent how to maneuver his truck into the foundation area.
Neither party objected to the trial judge's factual findings. We believe it appropriate to amplify them in only a few respects.
Re-Com ordered the sand because its contract with Reynolds required a '6 (inch) sand base' under a concrete floor. To transport the sand to the construction site, Bosher furnished a dump truck equipped with chains on its tailgate that could regulate the spreading of sand. Re-Com's superintendent directed Granderson, Bosher's driver, to back his truck over a temporary ramp across a retaining wall that enclosed the foundation area. The accident happened while Granderson was maneuvering his truck inside the foundation area to carry out the superintendent's instructions concerning the spreading of the sand.
Code § 65--37 2 provides in effect that the rights and remedies granted under the Workmen's Compensation Act shall exclude all other rights or remedies of the employee to recover for injury incurred during the course of his employment. Code § 65--38 3 recognizes, however, that the employee can maintain an action at law against the person who caused the injury, provided such person is an 'other party' within the meaning of Code § 65--38. The question before us therefore is whether Bosher, who was responsible for the acts of his employee Granderson, was an 'other party'.
The test is whether at the time of the accident Granderson was performing work on behalf of his employer, Bosher, that was part of the trade, business or occupation of Jamerson's employer, Re-Com Corporation. If Granderson was performing such work, Bosher, though an independent contractor, is not an 'other party' against whom Jamerson's right of action is preserved under the Workmen's Compensation Act, and Jamerson's right to recover for the injury is limited to the compensation provided under the Act. See Floyd, Administratrix v. Mitchell, 203 Va. 269, 274, 123 S.E.2d 369, 372 (1962).
The decision in this case is controlled by Floyd, Administratrix v. Mitchell, supra. In that case Glamorgan Pipe and Foundry Company hired Powell, a contract carrier, to transport Glamorgan's pipe to its...
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Slater v. Skyhawk Transportation, Inc., Civil Action No. 97-1853 (D. N.J. 5/4/1999)
...1962), or a person who delivers materials to a construction company and then assists in the construction project, see Bosher v. Jamerson, 151 S.E.2d 375 (Va. 1966), is not an "other This case is similar to facts in Burroughs and unlike those in Floyd and Bosher. While the accident occurred,......
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Slater v. Skyhawk Transportation, Inc.
...1962), or a person who delivers materials to a construction company and then assists in the construction project, see Bosher v. Jamerson, 151 S.E.2d 375 (Va. 1966), is not an "other This case is similar to facts in Burroughs and unlike those in Floyd and Bosher. While the accident occurred,......
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Johnson v. Teal, Civ. A. No. 91-00081-A.
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Demetres v. E. W. Constr., Inc.
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8.1 Introduction
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