Nolde Bros. Inc v. Chalkley

• Decision Date: 19 November 1945
• Citation: 35 S.E.2d 827,184 Va. 553
• Court: Virginia Supreme Court
• Parties: NOLDE BROS., Inc. v. CHALKLEY. FEITIG . v. SAME.

35 S.E.2d 827

184 Va. 553

NOLDE BROS., Inc.

v.CHALKLEY.

FEITIG .

v.SAME.

Supreme Court of Appeals of Virginia.

Nov. 19, 1945.

[COPYRIGHT MATERIAL OMITTED.]

Error to Law and Equity Court of City of Richmond, Part 2; Haskins Hobson, Judge.

Actions by Blanton Rolfe Chalkley, an infant, suing by his next friend, Bernard E. Chalkley, against Nolde Brothers, Incorporated, and George L. Feitig, to recover for injuries sustained by plaintiff while riding in a truck owned by first-named defendant and driven by last-named defendant. To review a judgment for plaintiff, defendants bring error.

Reversed and dismissed.

Before CAMPBELL, C. J., and HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Bowles, Anderson & Boyd, of Richmond, for plaintiffs in error.

George E. Allen and George E. Allen, Jr., both of Richmond, for defendant in error.

HUDGINS, Justice.

Blanton Rolfe Chalkley, an infant, instituted this action, by his next friend, against Nolde Brothers, Incorporated, and George L. Feitig to recover damages for personal injuries. From a judgment of $11,500 entered on the verdict for plaintiff, each defendant obtained a separate writ of error.

Plaintiff, in his notice of motion, alleged that he was a minor 11 years of age; that, on May 1, 1943, he was riding in an automobile truck owned and controlled by the defendant, Nolde Brothers, and operated by George L. Feitig, its servant; and that, due to the negligent operation of the truck by the driver, in Prince George County, he suffered serious and permanent injuries. Plaintiff further alleged that he was in the employ of the defendant, George L. Feitig, "in connection with the selling and delivering of bread for the defendant, Nolde Brothers, Incorporated; that the defendant, George L. Feitig, was at the time of said accident, and is now, a bread truck driver and bread salesman for the defendant, Nolde Brothers, Incorporated, manufacturers and wholesalers of bread and pastries, and that at the time of the aforesaid accident, the defendant, George L. Feitig, was on the business of the said defendant, Nolde Brothers, Incorporated.

"That the defendant, Nolde Brothers, Incorporated, permitted and suffered the plaintiff to work in, about, and in con nection with its business, as foresaid, in violation of law."

To this declaration a demurrer, a special plea and a plea in abatement to the jurisdiction of the court were duly filed. Each of the pleadings alleged that Nolde Brothers and all its employees were subject to the provisions of the Workmen's Compensation Act, that plaintiff was one of fits employees, and that therefore the trial court had no jurisdiction to determine the controversy because the statute clothed the Industrial Commission of Virginia with exclusive jurisdiction in all such matters.

The demurrer was abandoned because it did not affirmatively appear from the notice of motion that Nolde Brothers, Inc., employed the requisite number of persons to bring it and its employees within the provisions of the Workmen's Compensation Act. Code 1942, § 1887(1) et seq.

Upon demand of defendants, a jury was sworn to try the issues raised by the notice of motion and pleas.

Feitig testified that for fifteen years he had been a truck driver and salesman for Nolde Brothers on a route extending from Richmond to Waverly through Prince George and Chesterfield counties back to Richmond; that he sold and delivered the bakery products of Nolde Brothers on this route, for which he was guaranteed a minimum salary and paid commissions on sales and collections made by him; and that, on May 1, 1943, as he had done each Saturday for two months prior thereto, he employed plaintiff to assist him in delivering the bakery products and paid him out of his own pocket $1.75 per day.

J. Arthur Nolde, son of the vice-president and superintendent of transportation for Nolde Brothers, testified that 320 persons were employed by the corporation, 89 of whom were truck drivers; that the corporation and its employees were subject to the provisions of the Workmen's Compensation Act; that he had filed with the insurance carrier notice of the accident and that the carrier had filed like notice with the Industrial Commission; that he did not know plaintiff was employed by Feitig or that he was on the truck; that such employment was against the rules of the corporation and every truck driver was forbidden to permit anyone other than an employee to ride on the trucks; that sometimes, without his knowledge, these rules were violated; and that plaintiff was noton the corporation's payroll and it did not pay the insurance carrier any premium for plaintiff as an employee—that in fact, it had no knowledge that Feitig had employed a helper.

The statement of the plaintiff was as follows:

"That he is 11 years old; that on May 1st, 1943, he was riding in an automobile truck driven by Feitig when it came in collision with an automobile driven by E. M. Wood at the intersection of No. 10 with No. 625 in Prince George County, Virginia;

"That he was at that time working as a helper for George L. Feitig, the driver of the truck; that he had worked for Feitig four or five Saturdays, including the one on which he was hurt, and the Easter Holiday; that those Saturdays covered a period of about two months; that during that period he did not work one Saturday due to the rain and he did not work another Saturday because Feitig had an inspector with him on that occasion;

"That Feitig solicited his services, employed him and gave him anywhere from $1.25 to $2.00 according to what Feitig thought the boy was worth on the particular occasion; that he was not regularly employed, but Feitig would ask him on each occasion to work for him on that particular day and sometimes the boy would agree and sometimes he didn't; that no one had anything to do with such employment but Feitig;

"That the plaintiff never saw any of the Noldes or anybody but the drivers of the trucks and the helpers;

"That during the Christmas holidays he worked in a like manner for another driver about twice and that after Christmas he worked for another driver in like manner two or three times."

The court in effect held that there was no issue of fact, and that the uncontradicted evidence and the pleadings presented a question of law to be determined by the court. It rejected the pleas and held that plaintiff was not an employee of Nolde Brothers, to which ruling the defendants duly excepted.

Plaintiff contends that the ruling on the pleas became the law of the case and that the provisions of Michie's Code 1942, sec. 6105, control. The question raised by the pleas was not the venue or territorial jurisdiction of the court but the jurisdiction of the subject matter of the action. If plaintiff was an employee of Nolde Brothers, then the Industrial Commission had exclusive jurisdiction to determine his claim against the employer, as the statute has deprived all trial courts of jurisdiction over such subject matters.

Judge Burks, speaking for the court in Thacker v. Hubard, 122 Va. 379, 385, 94 S.E. 929, 930, 21 A.L.R. 414, said: "After defendant's demurrer and pleas had been rejected, he then moved the court to dismiss the proceeding because a court of law was without jurisdiction in cases of that kind. In other words, the ground of the motion was because the court had no jurisdiction of the subject-matter. The motion was a proper one, and the court rightly entertained it. 'By jurisdiction over the subject-matter is meant the nature of the cause of action and of the relief sought; and this is conferred by the sovereign authority which organizes the court and is to be sought for in the general nature of its powers, or in authority specially conferred.' Cooper v. Reynolds, 10 Wall. 308, 19 L.Ed. 931. If not fixed by the Constitution, the Legislature alone can determine of what subjects the several courts of the state shall have jurisdiction. No consent of parties can confer it, and a judgment outside of the jurisdiction so conferred is simply void. Objection for want of jurisdiction of the subject-matter may be taken by demurrer, or motion, or in any way by which the subject may be brought to the attention of the court, and if not brought to the attention of the trial court, it may be taken notice of by the appellate court, ex mero motu, for the first time." See Wilson v. State Highway Commissioner, 174 Va. 82, 4 S.E.2d 746; Barnes v. American Fert. Co., 144 Va. 692, 130 S;E. 902; Moore v. Norfolk & W. R. Co, 124 Va. 628, 98 S.E. 635; Burks PI. & Prac, 2d ed, p. 340.

Thereafter defendants, by three motions to dismiss, challenged the trial court's jurisdiction of the subject matter. One motion was made at the conclusion of the taking of the testimony of plaintiff; the same motion was renewed at the conclusion of the taking of all the evidence; and again the same motion was made to set aside the verdict. Each of these motions was overruled and exceptions noted.

The trial court's ruling on the pleas and its ruling on the different motions of defendants present the dominant questionin the case—that is, the status of plaintiff's relation to Nolde Brothers.

Plaintiff seems to have proceeded on the theory that he was an employee of Feitig, the truck driver, and that he was an invitee of Nolde Brothers. Nolde Brothers presented two theories in the alternative: (1) That plaintiff was a trespasser ab initio; and (2) that, if not a trespasser, he was its employee at the time of the accident. A resume of the evidence clarifies the bases on which the parties present their respective theories.

The evidence for defendants tends to show that Nolde Brothers had adopted strict rules forbidding its drivers to employ helpers or to permit anyone not in its employ to ride on its trucks; that it had posted signs in its loading sheds, "No helpers allowed in the wagon sheds, " "No admittance" and other signs of similar import; that the rules were enforced; and that the truck drivers were...