Floyd v. Mitchell

• Decision Date: 15 January 1962
• Docket Number: No. 5347,5347
• Citation: 203 Va. 269,123 S.E.2d 369
• Parties: MARGARET H. FLOYD, ADMINISTRATRIX, ETC. v. HENRY L. MITCHELL, ET AL. Record
• Court: Virginia Supreme Court

Page 369

123 S.E.2d 369

203 Va. 269

MARGARET H. FLOYD, ADMINISTRATRIX, ETC. v. HENRY L. MITCHELL, ET AL.

Record No. 5347.

Supreme Court of Appeals of Virginia

January 15, 1962.

William Rosenberger, Jr. (Perrow & Rosenberger, on brief), for the plaintiff in error.

E. Marshall Frost, for the defendants in error.

JUDGE: BUCHANAN

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

Carson W. Floyd, an employee of Glamorgan Pipe and Foundry Company, was struck and killed by a tractor-trailer owned by R. S. Powell, Inc., and operated by Henry L. Mitchell, Powell's employee. His administratrix applied for and was awarded by the Industrial Commission compensation from Glamorgan for his death under the Workmen's Compensation Act, Code §§ 65-1 ff. She also brought this action for damages for wrongful death against Mitchell and his employer, Powell, who filed a special plea asserting that the administratrix was limited to the recovery afforded by the Compensation Act and could not maintain this action at law. Issue was joined on the plea, the court heard the evidence, sustained the plea and dismissed the action.

The question presented on this appeal by the administratrix is whether the defendants, Mitchell and Powell, were 'other parties' within the meaning of § 65-38 of the Code, 1960 Cum. Supp., part of the Compensation Act. * The answer is in the application of settled principles to the facts of the case.

Glamorgan Pipe and Foundry is engaged in the business of manufacturing cast iron pipe and selling and shipping it to its customers. After the pipe is manufactured it is stacked on its yard for shipment. Carson W. Floyd was Glamorgan's foreman in the shipping yard, under the supervision of its production supervisor. Floyd supervised and assisted in the loading of the pipes and listing their weight. He had direction of all the men who worked on the shipping yard.

Powell was a contract carrier of property by motor vehicles operating under a permit from the State Corporation Commission. Glamorgan made a contract with Powell to transport pipe to Glamorgan's customers in the various States. Mitchell, one of the defendants and Powell's employee, operated a tractor belonging to Powell on the shipping yard. With the tractor he would pull Powell's trailers from their parking place on Glamorgan's premises and place them for loading at a point designated by Floyd.

The pipes to be loaded were stacked on the shipping yard on both sides of a space wide enough to operate a trailer between the stacks. The pipes were loaded on the trailer by means of a crane owned by Glamorgan and operated by its employees. Hooks were placed in the ends of the pipes and they were then lifted by the crane and placed in layers on the trailer. The layers were separated on the trailer by wooden cross pieces furnished by Glamorgan and held in position by blocks nailed to the ends of the cross pieces. All the equipment for loading was supplied by Glamorgan.

Mitchell's work was confined to Glamorgan's premises. When the trailer was in position he would get on the front end of it behind the cab of the tractor and assist in the loading operation and see that the weight of the pipe was properly distributed. For this purpose he gave directions to the crane operator and when the pipe was properly placed he would release the hook at his end of it and Glamorgan's employee would release the hook at the other end. After the pipes were placed, Mitchell and Glamorgan's employees would secure them on the trailer with chains and then Mitchell would pull the loaded trailer to its parking place on Glamorgan's premises, where it would be picked up by other of Powell's employees and equipment and transported over the road to its destination.

Mitchell testified that he and Floyd would go together into the small office on the yard, look through the bills and decide which pipe could best be loaded, and Floyd would at times get on the truck and assist in the loading in addition to supervising it. Mitchell said, 'We worked it out together,' and 'It was just a situation where I worked with the foundry. I worked right in with the foundry and would call Mr. Powell and tell him where the trucks were going. I was loading them and dispatching them. That was my job.' This procedure had been followed for a number of years prior to the accident. On the day of the accident Mitchell was backing the tractor-trailer between the stacks of pipes to the loading point agreed on with Floyd when, in some way not explained by the evidence, Floyd was run over and killed.

In Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73, we held that an employee injured by the negligence of a fellow servant was limited to the compensation afforded by the Workmen's Compensation Act, and could not maintain a common-law action for the tort, saying '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.' 185 Va. at 102, 38 S.E.2d at 75. There it was also said that when the theory, the history and the broad purpose of the Act are considered, the phrase cother party' [as now in § 65-38] refers exclusively to those who are strangers to the employment and the work.

In Sykes v. Stone & Webster Engineering Corp., 186 Va. 116, 41 S.E.2d 469, we held that the employee of a subcontractor injured when performing work which was part of the trade, business or occupation of the general contractor, could not maintain a common-law action against the general contractor, but was limited to the compensation provided for by the Workmen's Compensation Act. We said in that case, with respect to the first paragraph of § 20(a), as amended by Acts 1924, p. 478:

'* * * The first [paragraph, now § 65-26 of the Code] covers a case where the 'owner' undertakes to perform work which is part of his trade, business or occupation and contracts with a 'subcontractor' to do all or part of it. In that case the owner is liable to pay compensation to any workman employed in the work (by any subcontractor) just as if the workman had been immediately employed by the owner.' 186 Va. at 121, 41 S.E.2d at 471-2.

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