Burroughs v. Walmont, Inc.
| Decision Date | 16 June 1969 |
| Citation | 168 S.E.2d 107,210 Va. 98 |
| Parties | James H. BURROUGHS v. WALMONT, INC., et al. |
| Court | Virginia Supreme Court |
H. Shepherd Lippincott, Arlington (Lippincott & Holst, Arlington, on brief), for plaintiff in error.
Charles H. Duff, Arlington (Duff, Slenker & Brandt, Arlington, on brief), for defendants in error.
Before EGGLESTON, C.J., and BUCHANAN, SNEAD, I'ANSON, CARRICO, GORDON and HARRISON, JJ.
The sole issue presented is whether the Workmen's Compensation Act bars this tort action.
Defendant Lindsey & Waldron Construction Company was the general contractor for the construction of homes in a subdivision in Fairfax County known as Carriage Hill Estates. Under a contract with Lindsey & Waldron, Cherrydale Cement Block Company agreed to supply sheetrock for use in walls inside the homes. For an additional consideration, Cherrydale further agreed to deliver specified quantities of sheetrock to the rooms in the homes: to stack in each room the number of sections of sheetrock required to construct that room.
Plaintiff Burroughs was an employee of the trucking company that delivered the sheetrock for Cherrydale. While carrying sheetrock into the home under construction, Burroughs fell down an open stairwell in one of the homes and sustained injuries.
Burroughs received compensation from his employer under the Workmen's Compensation Act. Thereafter he brought this tort action against Lindsey & Waldron to recover for his personal injuries. The trial court dismissed the action, holding that it was barred by the Workmen's Compensation Act. Burroughs appeals. 1
The Workmen's Compensation Act does not bar a tort action if the person who causes the injury is an 'other party' within the meaning of the Act. Va.Code Ann. §§ 65.1--40, --41 (1968 Repl. vol.). And defendant Lindsey & Waldron was an 'other party' if at the time of the accident Burroughs was not performing work that was part of Lindsey & Waldron's trade, business or occupation. Bosher v. Jamerson, 207 Va. 539, 151 S.E.2d 375 (1966).
The trial court decided that Bosher v. Jamerson, Supra, controlled this case. The general contractor in that case was required to construct a concrete floor with a 6-inch sand base beneath it. Under a contract with the general contractor, a supplier of sand was required to dump or spread the sand at the job site as directed by the general contractor. While the driver who delivered the sand was spreading it in the foundation area in accordance with the building specifications, the truck he was driving struck and injured an employee of the general contractor. We held that since the driver was engaged in the trade, business or occupation of the general contractor, the injured employee could not maintain a tort action against the driver's employer.
There is a significant difference between Bosher and this case. The deliveryman in Bosher delivered the sand, And he participated in laying the 6-inch sand base required by the building specifications. The deliveryman in this case delivered the sheetrock to the rooms where it would be used by the workmen, but he did not participate in the construction of the buildings.
The gathering of material is of course essential to the construction of a building. So in a sense each supplier of material is engaged in the general contractor's trade, business or occupation. But a line must be drawn to determine who is an 'other party' for the purposes of the Workmen's Compensation Act. And persons who function solely as suppliers and deliverers of goods have been held 'other parties'. Perkinson v. Thomas, 158 Va. 699, 164 S.E. 561 (1932); Garrett v. Tubular Prods., Inc., 176 F.Supp. 101 (E.D.Va.1959); 2 see Turnage v. Northern Virginia Steel Corp., 336 F.2d 837, 843 (4th Cir. 1964).
In this case the stacking of sheetrock in the several rooms constituted the final act of delivery, not an act of construction. So Burroughs's activities did not transcend delivery, and he was not engaged in the trade, business or occupation of Lindsey & Waldron. Lindsey & Waldron was therefore an 'other party', and Burroughs could maintain this tort...
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Penn v. Virginia Intern. Terminals, Inc.
...that the "delivery cases" apply is unpersuasive. Hipp v. Sadler Materials Corp., 211 Va. 710, 180 S.E.2d 501 (1971), Burroughs v. Walmont, 210 Va. 98, 168 S.E.2d 107 (1969), and Buffalo Shook Co. v. Barksdale, 206 Va. 45, 141 S.E.2d 738 (1965). All involve truck drivers making deliveries of......
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Slater v. Skyhawk Transportation, Inc., Civil Action No. 97-1853 (D. N.J. 5/4/1999)
...not bar a tort action if the person who causes the injury is an 'other party' within the meaning of the Act." Burroughs v. Walmont, Inc., 168 S.E.2d 107, 108-09 (Va. 1969); see also Conlin v. Turner's Express, Inc., 331 S.E.2d 453, 455 (Va. 1985) ("[I]f . . . the employee's injury is caused......
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Slater v. Skyhawk Transportation, Inc.
...not bar a tort action if the person who causes the injury is an 'other party' within the meaning of the Act." Burroughs v. Walmont, Inc., 168 S.E.2d 107, 108-09 (Va. 1969); see also Conlin v. Turner's Express, Inc., 331 S.E.2d 453, 455 (Va. 1985) ("[I]f . . . the employee's injury is caused......
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Demetres v. E. W. Constr., Inc.
...Supreme Court has held that mere suppliers are strangers to the work of general construction contractors. Burroughs v. Walmont, Inc., 210 Va. 98, 99–100, 168 S.E.2d 107 (1969). In Burroughs, the Virginia Supreme Court permitted the employee of a sheetrock supplier to sue the general constru......