Doane v. EI DuPont de Nemours & Co.

• Decision Date: 30 January 1954
• Docket Number: No. 6734.,6734.
• Citation: 209 F.2d 921
• Parties: DOANE et al. v. E. I. DUPONT DE NEMOURS & CO. (Inc.)
• Court: U.S. Court of Appeals — Fourth Circuit

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 of DuPont, whose duty it was, by virtue of an agreement with Texas to stand by and advise when a leaded tank was cleaned, and to see that proper protective equipment was used by the workers; and it was further alleged that on the occasion of the injuries the designated representative failed in this duty whereby the plaintiffs were severely injured. In an amended complaint these allegations were retained and it was added that DuPont had complete charge of the manufacture and distribution of tetraethyl lead and that as part of the consideration of the purchase of its product DuPont supplied the services of a safety engineer and technician in and about the handling the product because of its dangerous character; and that when a tank was to be cleaned Texas notified DuPont and the latter supplied the technician in accordance with the agreement and that this course was followed in the instant case.

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 servant for injuries caused by the latter's negligence. This was decided in Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73, where such an employee brought suit against the owner and operator of a truck contending that he was an independent contractor; but the court found that he was a fellow servant of the plaintiff and dismissed the case. In discussing the question the court said:

"It seems clear that it was the legislative intent to make the act exclusive in the industrial field so that, in the event of an industrial accident, the rights of all those engaged in the business would be governed solely thereby. The remedies afforded the employee under the act are exclusive of all his former remedies within the field of the particular business, but the act does not extend to accidents caused by strangers to the business. If the employee is performing the duties of his employer and is injured by a stranger to the business, the compensation prescribed by the act is available to him, but that does not relieve the stranger of his full liability for the loss, and, if he is financially responsible, there is no reason to cast this loss as an expense upon the business.

"This seems to have been the underlying reason for the amendments to section 12, which provided for the subrogation to the employer of the employee\'s right against such strangers in case the employee accepts compensation for an injury arising out of and in the course of his employment but caused by a stranger to the business. Such a loss was not truly inherent in the business but was caused by the wrongful act of a stranger to it. (185 Va. 102, 38 S.E.2d 75.)

* * * * * *

"`Any other party,\' as used, does not necessarily include a coemployee or a fellow servant. It certainly includes a third party, a stranger in the field of that employment. When the theory, the history and the broad purpose of the act are considered, it would seem that `other party,\' as used in section 12, refers exclusively to those persons who are strangers to the employment and the work, and does not include those who have accepted the act and are within the express terms of section 11 — `he (employer) or those conducting his business.\'

"If the contention of defendant in

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