Rea v. Ford, 4592

• Decision Date: 21 January 1957
• Docket Number: No. 4592,4592
• Citation: 198 Va. 712,96 S.E.2d 92
• Court: Virginia Supreme Court
• Parties: HALLIE GOAD REA, ADMINISTRATRIX OF THE ESTATE OF LUTHER FRANKLIN REA, DECEASED v. WOODROW W. FORD. Record

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.

W. C. Pender and Edwin B. Meade (Pender, Coward & Boswell and

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 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 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 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 other party. * * * Any amount collected by the employer under the provisions of this section in excess of the amount paid by the employer or for which he is liable shall be held by the employer for the benefit of the injured employee or other person entitled thereto, less such amounts as are paid by the employer for reasonable expenses and attorney's fees. * * *' (Italics supplied.)

Code, § 65-99, provides: 'Every employer subject to the compensation provisions of this Act shall insure the payment of compensation to his employees in the manner hereinafter provided. While such insurance remains in force he or those conducting his business shall only be liable to an employee for personal injury or death by accident to the extent and in the manner herein specified.'

Code, § 65-37, provides: 'The rights and remedies herein granted to an employee when he and his employer have accepted the provisions of this Act respectively to pay and accept compensation on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise, on account of such injury, loss of service or death.'

The critical question here is whether the defendant, Ford, is an 'other party' within the meaning of section 65-38, read in connection with section 65-99. We hold that he is not under the principles laid down in Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73, and Sykes, Adm'x., v. Stone & Webster Engineering Corp., 186 Va. 116, 41 S.E.2d 469.

In the Feitig case we held that a fellow employee is not an 'other party' within the meaning of section 65-38, and consequently is not subject to an action at law for damages for injury to or death of a fellow servant. In discussing the question we pointed out that, 'When the theory, the history and the broad purpose of the act are considered,' an "other party,'' as used in section 65-38, 'refers exclusively' to one who is a stranger to the employment and the work and does not include one who has accepted the Act and is within the express terms of section 65-99. 185 Va., at page 104, 38 S.E.2d, at page 76.

This principle was reaffirmed in the Sykes case, in which we held that an action at law for the wrongful death of an employee of a subcontractor cannot be maintained against the principal contractor because the latter is not a stranger to the employment and the work. We there pointed out that, 'If the 'other party' who can be sued refers only to those who are strangers to the employment and the work, the result would be that this defendant, the general contractor, who is no stranger to the employment and the work, cannot be sued.' (186 Va., at page 121, 41 S.E.2d, at page 471.) Continuing, we said:

'It clearly appears to be the purpose of section 20(a) [now §§ 65-26 to 65-31] to bring within the operation of the Compensation Act all persons engaged in any work that is a part of the trade, business or occupation of the original party who undertakes as owner, or contracts as contractor, to perform that work, and to make liable to every employe engaged in that work every such owner, or contractor, and subcontractor, above such employe. But when the employe reaches an employer in the ascending scale, of whose trade, business or occupation the work being performed by the employe is not a part, then that employer is not...