Bristow v. Safway Steel Products, No. 9020.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: SOBELOFF, , BRYAN, Circuit , and THOMSEN
• Citation: 327 F.2d 608
• Docket Number: No. 9020.
• Decision Date: 14 January 1964
• Parties: John William BRISTOW, Plaintiff, Appellant, v. SAFWAY STEEL PRODUCTS, t/a Safway Steel Scaffolds, Virginia Division of Safway Steel Products, Incorporated, Defendant and Third-Party Plaintiff, Appellee, v. ROBERT M. DUNVILLE AND BROS., INCORPORATED, Third-Party Defendant, Appellee.

327 F.2d 608 (1964)

John William BRISTOW, Plaintiff, Appellant,
v.
SAFWAY STEEL PRODUCTS, t/a Safway Steel Scaffolds, Virginia Division of Safway Steel Products, Incorporated, Defendant and Third-Party Plaintiff, Appellee,
v.
ROBERT M. DUNVILLE AND BROS., INCORPORATED, Third-Party Defendant, Appellee.

No. 9020.

United States Court of Appeals Fourth Circuit.

Argued September 30, 1963.

Decided January 14, 1964.

William P. Hanson, Richmond, Va., for appellant (Hanson & Hanson, Richmond, Va., on brief).

Jack B. Russell, Richmond, Va., for appellee, Safway Steel Products, etc.

James C. Roberts and Ernest G. Garrett, Jr., Richmond, Va., for appellee, Robert M. Dunville and Bros., Inc. (Browder, Russell & Morris, Tucker, Mays, Moore & Reed, and May, Garrett, Miller, Newman & Compton, Richmond, Va., on brief).

Before SOBELOFF, Chief Judge, BRYAN, Circuit Judge, and THOMSEN, District Judge.

ALBERT V. BRYAN, Circuit Judge:

The Workmen's Compensation Act of Virginia, on acceptance of its provisions,

327 F.2d 609

denies an injured employee the right to recover damages which he may have "against any other party" unless the latter is one not "employed in the work" in which the employer of the injured employee is engaged.¹ See Doane v. E. I. Du Pont De Nemours & Co., 209 F.2d 921 (4 Cir. 1954). The question presently is whether John William Bristow, an employee of Robert M. Dunville and Bros., Incorporated, is foreclosed by the Act from recovering of Safway Steel Products for injuries sustained, assertedly due to Safway's negligence

Holding that the Act barred Bristow's action against Safway, because Safway was a subcontractor engaged in the work of Dunville as a general contractor, the District Court granted defendants' motion for summary judgment. This finding, we conclude on this appeal of Bristow, was error. The facts, uncontested, demonstrate that Safway was an "other party" under the Act and a "stranger" to the work of Bristow's employer, so not immune from direct liability to Bristow.

Dunville contracted with Richmond Food Stores, Incorporated for the installation of a refrigeration system. The agreement required Dunville to furnish all the necessary materials and labor for the job. As it had no scaffolding of its own, Dunville arranged to rent the staging from Safway, and in calculating its bid for the Richmond Food construction, Dunville included the rental cost. The formal lease between Safway and Dunville did not require Safway to do anything more than deliver the unassembled scaffolding to Dunville at the construction site. Accordingly, the equipment was placed at the Richmond Food plant by Safway, but no employee of Safway remained there or had anything to do with the erection of the scaffold. It was put up by Dunville employees exclusively.

While working on this scaffold as an employee of Dunville, Bristow was injured when it turned over. He brought suit against Safway upon the allegation that the scaffolding was defective and not suited for its intended purpose. Safway impleaded Dunville in the case to enforce a covenant of the lease that Dunville would save Safway harmless from any claim arising from the "erection and maintenance, use or possession" of the scaffold.

An employee is presumed to have accepted the Workmen's Compensation Act,² and an application for its benefits will "exclude all other rights and remedies of such employee * * * at common law or otherwise, on account of such injury * * *."³ Bristow actually received compensation payments from Dunville. Acceptance of the Act "shall operate as an assignment to the employer of any right to recover damages which the injured employee * * * may have against any other party for such injury * * *."⁴ (Accent ours.) The action may be brought in the name of the employee, and any excess recovered beyond the compensation and expenses of suit paid by the employer is given the employee.

Primarily, the Act requires that every employer shall pay the stipulated compensation to any of his employees who have suffered injury or death in the course of his employment.⁵ Additionally, in separate sections⁶ it provides that when an owner undertakes to perform or execute any work which is a part of his "trade, business or occupation", he "shall be liable to pay to...