Doane v. EI DuPont de Nemours & Co., No. 6734.
| Court | U.S. Court of Appeals — Fourth Circuit |
| Writing for the Court | PARKER, , and SOPER and DOBIE, Circuit |
| Citation | 209 F.2d 921 |
| Parties | DOANE et al. v. E. I. DUPONT DE NEMOURS & CO. (Inc.) |
| Docket Number | No. 6734. |
| Decision Date | 30 January 1954 |
209 F.2d 921 (1954)
DOANE et al.
v.
E. I. DUPONT DE NEMOURS & CO. (Inc.)
No. 6734.
United States Court of Appeals, Fourth Circuit.
Argued January 7, 1954.
Decided January 30, 1954.
H. Lee Kanter, Norfolk, Va. (Kanter & Kanter, and Vernon T. Forehand, Norfolk, Va., on the brief), for appellants.
Aubrey R. Bowles, Jr., Richmond, Va. (Jack N. Herod, Richmond, Va., Peter J. Nolan, Wilmington, Del., and Bowles, Anderson & Boyd, Richmond, Va., on the brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
This suit was brought by ten employees of the Texas Company against E. I. DuPont de Nemours & Company, a Delaware Corporation, on account of injuries occasioned by the inhalation of noxious lead fumes in the course of removing tetraethyl lead sediment and other sludge from a tank used by Texas in its business of storing and marketing petroleum products at South Norfolk, Virginia. The work was done for Texas under the supervision and direction of a safety engineer, a specialist in the lead field, who was supplied for the purpose by DuPont in connection with the sale of its products containing tetraethyl lead to Texas.
The suit is based on the charge that the expert was negligent in failing to notify the men that it was unsafe to work in the contaminated tank without protective equipment. The injured men claimed and received compensation from Texas under the Workmen's Compensation Act of Virginia, Code Va.1950, § 65-1 et seq.; and the defense to the suit is that since the work was done in the course of Texas' business, the plaintiffs have no other claim against either Texas or DuPont. This defense was sustained by the District Judge who dismissed the case on the pleadings.
The case was heard on DuPont's motion for summary judgment. It was alleged in the complaint that the plaintiffs were employed by Texas and as such had the duty of cleaning its storage tanks by removing the deposits under the direction and supervision of a designated representative
The relations of the parties to each other thus described are not set out with sufficient detail to enable us to say whether, when the tank was being cleaned, the workmen of Texas and the technician of DuPont were all acting as employees of Texas, or whether the workmen were the employees of Texas, and the technician was the employee of DuPont in the performance of a service which it had agreed to render Texas. For the purposes of this discussion, however, it is immaterial which view is taken. The allegations of the complaint establish beyond any doubt that the cleaning of the tank was an operation performed in the course of the business of Texas, and hence under the law of Virginia, the plaintiffs have no cause of action against DuPont whether its technician was a fellow employee of the injured workmen of Texas for the purposes of the operation or was acting as the employee or representative of DuPont to supply the supervision which DuPont had agreed to furnish.
It is not and cannot be disputed that an employee of a business covered by the statute cannot maintain a suit against a fellow...
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Masterson v. Am. Heavy Indus., Civil Docket No. CL09-7205
...526 (2001); Farish v. Courion Industries, Inc., et al., 722 F.2d. 74 (4th Cir. 1983); Doane, et al. v. E.I. Dupont De Nemours & Co. Inc., 209 F.2d 921 (4th Cir. 1954). 4. Note that in a 1983 "descending case", the Fourth Circuit observed a general rule differing from the one AHI propounds, ......
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Walker v. United States Gypsum Company, No. 7846.
...186 Va. 116, 41 S.E.2d 469; Sears, Roebuck & Co. v. Wallace, 4 Cir., 172 F. 2d 802; Doane v. E. I. Du Pont de Nemours & Co., 4 Cir., 209 F.2d 921. Few manufacturers do plant maintenance or construction work for others, but when one regularly and customarily does such work for himself it is ......
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Johnson v. American Mut. Liability Ins. Co., No. 75-4451
...in the business" of the insured (Williams v. United Fidelity & Guaranty Co., supra at 801, and Doane v. E. I. Dupont de Nemours & Co., 209 F.2d 921 (4th Cir. 1954), both construing the Virginia statute); and that it "did not undertake to perform a voluntary act for the benefit of someone el......
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Wilson v. Fraser, Civ. No. 21351.
...472, 125 S.E.2d 196 (1962). See also, Beall v. Standard Elec. Co., 404 F.2d 881 (4th Cir. 1968); Doane v. E. I. Dupont de Nemours & Co., 209 F.2d 921 (4th Cir. In Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73 (1946), the Supreme Court of Appeals of Virginia clearly set forth the rationale fo......
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Masterson v. Am. Heavy Indus., Civil Docket No. CL09-7205
...526 (2001); Farish v. Courion Industries, Inc., et al., 722 F.2d. 74 (4th Cir. 1983); Doane, et al. v. E.I. Dupont De Nemours & Co. Inc., 209 F.2d 921 (4th Cir. 1954). 4. Note that in a 1983 "descending case", the Fourth Circuit observed a general rule differing from the one AHI propounds, ......
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Walker v. United States Gypsum Company, No. 7846.
...186 Va. 116, 41 S.E.2d 469; Sears, Roebuck & Co. v. Wallace, 4 Cir., 172 F. 2d 802; Doane v. E. I. Du Pont de Nemours & Co., 4 Cir., 209 F.2d 921. Few manufacturers do plant maintenance or construction work for others, but when one regularly and customarily does such work for himself it is ......
-
Johnson v. American Mut. Liability Ins. Co., No. 75-4451
...in the business" of the insured (Williams v. United Fidelity & Guaranty Co., supra at 801, and Doane v. E. I. Dupont de Nemours & Co., 209 F.2d 921 (4th Cir. 1954), both construing the Virginia statute); and that it "did not undertake to perform a voluntary act for the benefit of someone el......
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Wilson v. Fraser, Civ. No. 21351.
...472, 125 S.E.2d 196 (1962). See also, Beall v. Standard Elec. Co., 404 F.2d 881 (4th Cir. 1968); Doane v. E. I. Dupont de Nemours & Co., 209 F.2d 921 (4th Cir. In Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73 (1946), the Supreme Court of Appeals of Virginia clearly set forth the rationale fo......