Ferrell v. Beddow, 5407

• Decision Date: 23 April 1962
• Docket Number: No. 5407,5407
• Citation: 203 Va. 472,125 S.E.2d 196
• Parties: WILLIAM H. FERRELL v. RODNEY W. BEDDOW. Record
• Court: Virginia Supreme Court

Page 196

125 S.E.2d 196

203 Va. 472

WILLIAM H. FERRELL v. RODNEY W. BEDDOW.

Record No. 5407.

Supreme Court of Appeals of Virginia

April 23, 1962.

Edward S. Hirschler (Miles Cary, Jr.; Hirschler, Fleischer & Sadler, on brief), for the plaintiff in error.

Travis W. Poole (M. Wallace Moncure, Jr., on brief), for the defendant in error.

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

William H. Ferrell, as a result of injuries he sustained when Rodney W. Bellow struck him with a vehicle he was operating, instituted an action at law against Beddow for damages. Beddow filed a plea in abatement to the jurisdiction of the court, alleging that sole jurisdiction rested in the Industrial Commission under the Virginia Workmen's Compensation Act. Ferrell, in his reply to the plea, denied the allegation. After hearing evidence ore tenus, the court sustained the plea and dismissed the action. We granted Ferrell a writ of error.

The underlying question presented is whether the evidence was sufficient to sustain the trial court's finding that the accident and the resulting injuries arose out of and in the course of the employment of Ferrell and Beddow.

The plaintiff, William H. Ferrell, and the defendant, Rodney W. Beddow, were employees of Somers M. Wilton, Inc., a building contractor. Somers M. Wilton was the president and active head of the corporation. Ferrell, who was trim carpenter foreman, and Beddow, a carpenter, were paid by the hour for their work. The work day began at 7:30 a.m. and ended at 4 p.m. They were assigned duties on a house on Ledbury road being constructed by the corporation in one of its projects known as Pinedale Farms in Henrico county. They worked as a team and had been employed by the corporation for several years.

Ferrell was accustomed to arriving at job sites a considerable time before 7:30 a.m. and on August 22, 1960, he arrived in his street clothes about 7 a.m. He parked his station wagon on Ledbury road opposite the house being constructed, which was situated approximately 30 feet from the road. In his vehicle were the corporation's tools, hinges, locks, etc., as well as property of his own. He took his lunch box, work clothes and a handsaw, which he had sharpened on his own time for a fellow employee, out of his vehicle and carried them into the house. While still dressed in his street clothes, he returned to his station wagon, opened both the upper and lower tail gates and reached for his skill saw. Beddow in the meantime had arrived in his vehicle with ice to be used for cooling drinking water on the job and was in the act of parking behind Ferrell when he accidently hit the clutch instead of the brake as his car was coasting down the road. His vehicle struck Ferrell while he was reaching for the saw and caused his station wagon to move forward. Ferrell was taken to the hospital by a rescue squad for treatment of his injuries. The time of the accident was about 7:15 a.m.

The evidence adduced was conflicting as to whether the accident arose out of and in the course of the employment of Ferrell and Beddow. Beddow testified that picking up ice on his way to work in the morning and distributing it at the project where he worked was one of his extra duties assigned by Wilton, but others would perform this duty on occasions; that on the morning of the accident he had distributed ice to a painter in the Pinedale Farms project and had ice in his car for himself and Ferrell, and that remuneration for this service was included in his hourly rate of pay. He further testified that another duty of his was to remove the corporation's tools that would be needed on a particular day from Ferrell's vehicle and carry them into the house, but that 'sometimes Mr. Ferrell would help me', and that Ferrell usually took the corporation's tools home each night.

Ferrell stated that he did not know anything about extra duties being assigned to Beddow; that Beddow had picked up the ice and distributed it at times, and that he had carried the tools into the place of work 'right regular.' When asked whether he was designated as custodian of the tools, he replied, 'No, he don't dedicate me to take care of them. He [Wilton] told me to put them in the attic if I didn't want to take care of them. He didn't pay me to take care of them.' He said he took the corporation's tools home to use on personal work, and that when Wilson assigned him to extra jobs, he kept his own time and was paid for such work.

Somers M. Wilton stated that he and Beddow married half sisters; that around April, 1960, he raised Beddow's hourly rate of pay from $2.30 to $2.50, pursuant to a conference between the two after Beddow had indicated an intention to seek employment elsewhere, and that prior to that time he paid Beddow extra compensation for securing and distributing the ice and putting up the electric cords before the work day commenced. He further stated that he paid George Clem additional money for 'stopping by the ice house'; that at the time of the accident he was not paying Beddow for securing the ice or bringing in the tools and the cord; that he did not have any duties except to 'be ready to start hammering or sawing at 7:30 in the morning.' He also said that he did not pay Ferrell for taking the tools home at night or carrying them from his vehicle to his place of work. He did say that he designated Ferrell as custodian of his tools. When asked what instructions were given Ferrell with respect to the tools, he answered, 'I just told him that I wanted him to take care of my tools and to look after them, etc., and that he could either put them up in the attic or carry them home or do what he chooses with the tools.' In reply to a question as to whether he had told Beddow that he did not have to do the chores in question, he stated, 'I never told him he did or didn't.'

Archie H. Hagen, foreman on the job, testified that to his knowledge Beddow was not paid for doing anything...