Garrett v. Tubular Products, Incorporated
| Citation | 176 F. Supp. 101 |
| Decision Date | 30 July 1959 |
| Docket Number | Civ. A. No. 2632. |
| Parties | Henry Lee GARRETT v. TUBULAR PRODUCTS, INCORPORATED and Frank Jett. |
| Court | U.S. District Court — Eastern District of Virginia |
Tuck & Somma, Richmond, Va., for plaintiff.
Denny, Valentine & Davenport, Richmond, Va., for defendants.
The essential facts with which we are concerned are as follows.
In 1955, Doyle and Russell, of Richmond, Virginia, a general contractor engaged in the construction business, entered into a contract with the Mutual Assurance Society of Virginia to erect a parking garage on land owned by the Society at the northeast corner of 9th and Cary Streets in the City of Richmond. Under its contract with the Society, Doyle and Russell agreed to furnish all materials and labor required for the job. As is customary in such operations, Doyle and Russell also entered into agreements with various subcontractors to perform specified portions of the work. Among the subcontractors was Liphart Steel Company of Richmond, which company contracted to erect the steel in the parking facility. That contract recited that Doyle and Russell had an agreement with Tubular Products of Souderton, Pennsylvania, to furnish and deliver f. o. b. trucks to the building site certain columns constructed of tubular steel, to be used in connection with the Liphart operations. Liphart, in turn, contracted with Moore Crane Service of Richmond for Moore to provide a crane and crew to unload the steel pipe columns which were to be delivered by Tubular f. o. b. truck at the site. The plaintiff to this action, Garrett, was employed as a helper on the crane furnished by Moore to Liphart for the purpose of unloading the steel.
Doyle and Russell, the general contractor, also entered into an agreement with Tubular, bearing date of July 26, 1955, under which agreement or contract Tubular agreed to "furnish all the materials and perform all the work mentioned in the specifications and shown on the drawings prepared by the architects", and deliver f. o. b. trucks to the building site. In that contract Tubular is referred to as the subcontractor and it agreed to prepare shop drawings for the material and to make deliveries at specified times. It was further provided that a sufficient number of trucks would be used in delivering the columns so as to permit uninterrupted unloading by the cranes. It was further recited that Doyle and Russell, as contractor, had sublet to another subcontractor the erection of the columns. In the contract between Doyle and Russell and Tubular it was specifically provided that erection of the columns was not included.
It will thus be seen from this and other provisions in the contract that the material was fabricated by Tubular in accordance with the specifications of the architects and there were a number of formal provisions concerning compliance in that regard.
On October 6, 1955, in accordance with the contract, Tubular delivered to the job site a truck load of material on a tractor-trailer operated by the defendant, Frank Jett. After the arrival of the material the crane supplied by Moore and operated by the crew, including the plaintiff Garrett, prepared to unload the material from the trailer. Jett, the employee of Tubular, was directed by the operator of the crane, to place the trailer in position for unloading. In this movement the plaintiff Garrett was injured.
This is an action brought by Garrett against Tubular and Jett to recover damages for the injuries so sustained. A motion for summary judgment has been filed by the defendants, in which it is contended that the plaintiff's remedy is solely under the Workmen's Compensation Act of Virginia and no common law action can be maintained by him against the defendants. The defendants contend that they are not the "other party" within the meaning of Section 65-38 of the Virginia Workmen's Compensation Act, ...
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