Evans v. Newport News Shipbuilding and Dry Dock Co.

• Decision Date: 05 August 1965
• Docket Number: Civ. No. 1017.
• Citation: 243 F. Supp. 1017
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Wendell EVANS, Plaintiff, v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Defendant.

243 F. Supp. 1017

Wendell EVANS, Plaintiff, v. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, Defendant.

Civ. No. 1017.

United States District Court E. D. Virginia, Newport News Division.

August 5, 1965.

Irving R. M. Panzer, Washington, D. C., Robert Lee Watt, Alexandria, Va., Larson & Greene, Washington, D. C., Robert M. Stefanon, Greensburg, Pa., for plaintiff.

Phillips M. Dowding, Newport News, Va., for defendant.

WALTER E. HOFFMAN, Chief Judge.

Under a state of facts substantially similar to McCann v. Newport News Shipbuilding and Dry Dock Company, D.C., 177 F.Supp. 909, and other applicable authorities from the Supreme Court of Appeals of Virginia and the United States Court of Appeals for the Fourth Circuit, the defendant's motion for summary judgment must be sustained.

On July 16, 1962, plaintiff, an employee of McLean Contracting Company, was engaged in erecting two cranes which the defendant had purchased in Pittsburgh, Pennsylvania, and which had been shipped to the defendant's shipyard at Newport News, Virginia, in a disassembled condition. McLean was primarily engaged in doing the welding and structural steel work in erecting the cranes, and the defendant, using its own employees and equipment, performed the balance of the work. Plaintiff, when injured, was in the area of the crane cab and allegedly was knocked to the ground while assisting other McLean employees in erecting certain structural steel plates on one of the cranes being assembled.

The uncontradicted evidence establishes that the defendant had previously erected a number of cranes using its own personnel and equipment and, further, that it was capable of doing all of the work necessary to erect such cranes without assistance from McLean or any other party. Where the work of the defendant calls for the use of defendant's caterpillar or crawler-type cranes in other areas of the shipyard operation, or where the defendant's welders are otherwise engaged, McLean frequently takes over this portion of the work.

Defendant is certified by the Industrial Commission of Virginia as a self-insurer under the Virginia Workmen's Compensation Act. Plaintiff applied for and has received (or is still receiving) the benefits from McLean's compensation insurance carrier.

The immediate question thus far is whether plaintiff was a statutory employee of the defendant under § 65-26 of the Code of Virginia, 1950 as amended. We hold that he was and that the work being performed was a part of defendant's normal trade, business or occupation. The defendant was not an "other party" within the meaning of § 65-38. The action is barred under §§ 65-37 and 65-99. McCann v. Newport News Shipbuilding and Dry Dock Company, supra; Sykes v. Stone & Webster Engineering Corporation, 186 Va. 116, 41 S.E.2d 469; Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73; Rea v. Ford, 198 Va. 712, 96 S.E.2d 92; Williams v. E. T. Gresham Co., 201 Va. 457, 111 S.E.2d 498; Anderson v. Thorington Construction Company, 201 Va. 266, 110 S.E.2d 396; Doane v. E. I. DuPont de Nemours & Co., 4 Cir., 209 F.2d 921; Floyd v. Mitchell, 203 Va. 269, 123 S.E.2d 369; Walker v. United States Gypsum Company, 4 Cir., 270 F.2d 857, cert. den. 363 U.S. 805, 80 S.Ct. 1240, 4 L.Ed.2d 1148.

Plaintiff's argument that the issue as to whether he was a statutory employee of defendant must be submitted to the jury under the doctrine pronounced in Byrd v. Blue Ridge Electric Corp., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953, and Magenau v. Aetna Freight Lines, Inc., 360 U.S. 273, 79 S.Ct. 1184, 3 L.Ed.2d 1224, is sufficiently answered to the contrary in Walker v. United States Gypsum Company, supra.

An attempt is made to strengthen plaintiff's case by alleging punitive damages and a claim for first aid mishandling immediately following the injury. Assuming, without deciding, that defendant rendered first aid treatment which can be characterized as negligence, it avails the plaintiff nothing. Section 65-86 of the Code of Virginia, 1950 as amended, expressly provides that the consequences of any malpractice shall be deemed part of the injury resulting from the accident and that the injured employee shall be compensated for such malpractice as a part and parcel of the original injury. It is also settled that an employer is liable to pay compensation for any aggravation of the original injury, even if such aggravation arises by reason of malpractice. Fauver v. Bell, 192 Va. 518, 65 S.E.2d 575; Lynchburg Foundry Co. v. Irvin, 178 Va. 265, 16 S.E.2d 646.

Plaintiff cites certain cases which, at first blush, would appear to support his theory that a separate cause of action exists for the alleged first aid mishandling. Vessel v. Jardine Mining Co., 110 Mont. 82, 100 P.2d 75, 127 A.L.R. 1093; Ruth v. Witherspoon-Englar Co., 98 Kan. 179, 157 P. 403, L.R.A.1916E, 1201; Denes v. R. M. Hollingshead Co., 7 N.J. Misc. 39, 145 A. 321; Shipley v. Well-wood Silk Throwing Mills, 164 Tenn. 281, 47 S.W.2d 561. The difficulty with these authorities is that the statutes of the various states involved do not call for the mandatory payment by the employer of the medical attention to the employee. Indeed, the Vessel case, in referring to the Montana statute, states:

"The Act does not require the employer to furnish medical aid, and there is no hospital contract between appellant and respondent. In jurisdictions where the Act requires the employer to furnish medical aid, or where the employee submits to the employer's selected physician or surgeon, it has been held that the Workmen's Compensation Act is exclusive, on the theory, it would seem, that if the employer is bound to furnish medical aid, or if the employee submits to the employer's selected physician, then the employer should be protected and the Compensation Fund should pay the employee for any additional or new injury sustained. In our opinion the Workmen's Compensation Act of Montana cannot be so construed."

The same rule applies in Kansas, New Jersey and Tennessee. As we know, Virginia requires the employer to furnish medical aid; it requires the injured employee to submit to...