Rea v. Ford, No. 4592

Docket NºNo. 4592
Citation198 Va. 712, 96 S.E.2d 92
Case DateJanuary 21, 1957
CourtSupreme Court of Virginia

Page 92

96 S.E.2d 92
198 Va. 712
HALLIE GOAD REA, ADMINISTRATRIX OF THE ESTATE OF LUTHER FRANKLIN REA, DECEASED
v.
WOODROW W. FORD.
Record No. 4592.
Supreme Court of Appeals of Virginia
January 21, 1957.

[198 Va. 713] W. C. Pender and Edwin B. Meade (Pender, Coward & Boswell and

Page 93

Meade, Talbott & Tate, on brief), for the plaintiff in error.

Edward L. Breeden, Jr. (James A. Howard and Breeden, Howard & MacMillan, on brief), for the defendant in error.

JUDGE: EGGLESTON

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

This litigation arises out of an industrial accident which occurred on March 2, 1954, during the construction of a high school building in the City of South Norfolk. John W. Daniel & Company, Inc., hereinafter referred to as Daniel, the principal contractor on the project, rented from Woodrow W. Ford a crane with its operator and helper for the purpose of hoisting in place certain steel trusses. During the operation of the crane in this work a truss fell, killing Luther Franklin Rea, an employee of Daniel.

Rea's administratrix filed an action at law for damages for his wrongful death against Ford, alleging that the death of the decedent was caused by the negligence of Ford in that the crane and its equipment furnished by him were defective and had been operated in a negligent manner by a servant of Ford. There was a trial before a jury and at the conclusion of the plaintiff's evidence the court struck the evidence on the ground that the operation and the hazards incident thereto by Daniel and Ford were within the purview of the Workmen's Compensation Act; that the plaintiff's exclusive remedy was under such Act, and that the present common-law action could not be maintained. To review the judgment entered pursuant to that ruling the present writ was allowed.

The facts which were developed by the plaintiff's evidence are without conflict and may be stated thus:

In the erection of the steel work for the building it was necessary that several horizontal, fabricated steel trusses, each about 90 feet long and weighing from 12 to 15 tons, be raised and attached at each end to the top of 30-foot steel columns. Daniel's equipment on the job was not capable of lifting these trusses and for that purpose it rented from Ford a crane and its crew, at $11.50 per hour. The crane crew consisted of an operator, Wilson, and a helper, Calhoun. The crane and its crew went to the site on February 25, 1954, and were [198 Va. 714] placed under the direction and control of Arthur H. Jurgensen, Daniel's superintendent. Jurgenson and Rea, who worked under him, gave the crane crew directions as to what truss was to be raised, when it was to be raised, and where it was to be placed. While the members of the crane crew were on the payroll of Ford, he gave them no directions as to how, when and where they should work. Indeed, Ford was not present during the work, nor did he have there any superintendent, servant, or employee other than the members of the crane crew.

The crane was equipped with the usual boom and steel rope. A sling or 'spreader' was placed around the truss and hooked to the end of the cable on the crane. This sling was made with a wire cable procured from Ford's warehouse and clamps furnished by Daniel. It was assembled under the direction of Jurgensen by Rea and a member of the crane crew.

Two trusses were raised and put in place on February 25 and 26. The accident with which we are concerned occurred while a truss was being hoisted and placed in position on March 2. On that occasion the sling was placed around the truss and tested by Rea. While the truss was being raised by the crane, Rea stood on one end of the truss while Casey, a fellow employee, stood on the other. It was the duty of these employees to bolt the respective ends of the truss to the upright columns when the truss came into a proper position. To facilitate the swinging of the truss into

Page 94

a proper position a 'tag' line, manned by an employee of Daniel, was fastened to each end of the truss.

It is not clear from the evidence just how and why the accident occurred. The witnesses agree that, as was customary, the truss was raised above the ends of the columns to which it was to be fastened. Rea signaled to the operator to lower the truss. In doing so, one end of the truss struck the top of one of the columns, the sling or 'spreader' broke, and the truss fell to the floor. Rea, who was standing on the truss, was thrown to the floor and killed.

There is evidence which tended to show that during the lowering operation the crane did not operate smoothly but 'jerked.' Whether this was due to the negligence of the operator or to a defect in the crane, and if so, whether such negligence or defect caused the accident, is not clearly shown in the evidence. Wilson, the operator of the crane, was not called as a witness for the plaintiff, nor did he testify for the defendant, who, under the court's ruling, was not required [198 Va. 715] to put on any evidence.

The sufficiency of the plaintiff's evidence as to the negligence of the defendant was challenged in the motion to strike but not passed upon by the trial court. We, too, do not reach that question. For other reasons we conclude that the plaintiff's suit at law cannot be maintained.

It was stipulated that the decedent's widow, Hallie Goad Rea, had asserted her claim for compensation under the Workmen's Compensation Act against her husband's employer, Daniel, and its insurance carrier, Hartford Accident & Indemnity Company, and that the Industrial Commission had entered an award in her favor, from which no appeal was taken. It further appeared that Ford had accepted and complied with the Act.

The present common-law action was brought under Code, § 65-38, for the benefit of the insurance carrier and the decedent's estate. The pertinent portion of that section reads:

'The making of a lawful claim against an employer for compensation under this Act for the injury or death of his employee shall operate as an assignment to the employer of any right to recover damages which the injured employee or his personal representative or other person may have against any other party for such injury or death, and such employer shall be subrogated to any such right and may enforce, in his own name or in the name of the injured employee or his personal representative, the legal liability of such...

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35 practice notes
  • Johnson v. Teal, Civ. A. No. 91-00081-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • 11 Julio 1991
    ...Stout v. Onorati, 221 Va. 143, 267 S.E.2d 154 (1980); Bosher v. Jamerson, 207 Va. 539, 151 S.E.2d 375 (1966); Rea, Administratrix v. Ford, 198 Va. 712, 96 S.E.2d 92 (1957); Sykes v. Stone & Webster Eng. Corp., 186 Va. 116, 41 S.E.2d 469 (1949); Fetig v. Chalkley, 185 Va. 96, 38 S.E.2d 73 (1......
  • Farish v. Courion Industries, Inc., No. 82-1964
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 1 Diciembre 1983
    ...327 F.2d 608 (4th Cir.1964); Burroughs v. Walmont, Inc., 210 Va. 98, 168 S.E.2d 107 (1969); Floyd v. Mitchell, supra; Rea v. Ford, 198 Va. 712, 96 S.E.2d 92 (1957). Identifying, in a given case, which contractor or subcontractor is an "other party," however, is mildly complicated by the Vir......
  • Walker v. United States Gypsum Company, No. 7846.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 5 Octubre 1959
    ...580. 7 Code of Virginia, 1950, § 65-37. 8 See Tidewater Stevedoring Corp. v. McCormick, 189 Va. 158, 52 S.E.2d 61; Rea v. Ford, 198 Va. 712, 96 S.E.2d 92; Hann v. Times-Dispatch Pub. Co., 166 Va. 102, 184 S.E. 9 Kramer v. Kramer, 199 Va. 409, 100 S.E. 2d 37. 10 Nolde Bros., Inc. v. Chalkley......
  • Whalen v. Dean Steel Erection Co., Inc., No. 820541
    • United States
    • Virginia Supreme Court of Virginia
    • 8 Marzo 1985
    ...Stout v. Onorati, 221 Va. 143, 267 S.E.2d 154 (1980); Bosher v. Jamerson, 207 Va. 539, 151 S.E.2d 375 (1966); Rea, Administratrix v. Ford, 198 Va. 712, 96 S.E.2d 92 (1957); Sykes v. Stone & Webster Eng. Corp., 186 Va. 116, 41 S.E.2d 469 (1947). Its application depends upon the facts and cir......
  • Request a trial to view additional results
35 cases
  • Johnson v. Teal, Civ. A. No. 91-00081-A.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • 11 Julio 1991
    ...Stout v. Onorati, 221 Va. 143, 267 S.E.2d 154 (1980); Bosher v. Jamerson, 207 Va. 539, 151 S.E.2d 375 (1966); Rea, Administratrix v. Ford, 198 Va. 712, 96 S.E.2d 92 (1957); Sykes v. Stone & Webster Eng. Corp., 186 Va. 116, 41 S.E.2d 469 (1949); Fetig v. Chalkley, 185 Va. 96, 38 S.E.2d 73 (1......
  • Farish v. Courion Industries, Inc., No. 82-1964
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 1 Diciembre 1983
    ...327 F.2d 608 (4th Cir.1964); Burroughs v. Walmont, Inc., 210 Va. 98, 168 S.E.2d 107 (1969); Floyd v. Mitchell, supra; Rea v. Ford, 198 Va. 712, 96 S.E.2d 92 (1957). Identifying, in a given case, which contractor or subcontractor is an "other party," however, is mildly complicated by the Vir......
  • Walker v. United States Gypsum Company, No. 7846.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 5 Octubre 1959
    ...580. 7 Code of Virginia, 1950, § 65-37. 8 See Tidewater Stevedoring Corp. v. McCormick, 189 Va. 158, 52 S.E.2d 61; Rea v. Ford, 198 Va. 712, 96 S.E.2d 92; Hann v. Times-Dispatch Pub. Co., 166 Va. 102, 184 S.E. 9 Kramer v. Kramer, 199 Va. 409, 100 S.E. 2d 37. 10 Nolde Bros., Inc. v. Chalkley......
  • Whalen v. Dean Steel Erection Co., Inc., No. 820541
    • United States
    • Virginia Supreme Court of Virginia
    • 8 Marzo 1985
    ...Stout v. Onorati, 221 Va. 143, 267 S.E.2d 154 (1980); Bosher v. Jamerson, 207 Va. 539, 151 S.E.2d 375 (1966); Rea, Administratrix v. Ford, 198 Va. 712, 96 S.E.2d 92 (1957); Sykes v. Stone & Webster Eng. Corp., 186 Va. 116, 41 S.E.2d 469 (1947). Its application depends upon the facts and cir......
  • Request a trial to view additional results

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