Southern Stevedoring Corp. v. Harris

• Decision Date: 13 March 1950
• Docket Number: No. 3617,3617
• Citation: 190 Va. 628,58 S.E.2d 302
• Parties: SOUTHERN STEVEDORING CORPORATION v. WALTER C. HARRIS. Record
• Court: Virginia Supreme Court

Page 302

58 S.E.2d 302

190 Va. 628

SOUTHERN STEVEDORING CORPORATION v. WALTER C. HARRIS.

Record No. 3617.

Supreme Court of Appeals of Virginia

March 13, 1950.

White, Ryan & Holland, for the plaintiff in error.

Louis Lee Guy, for the defendant in error.

JUDGE: BUCHANAN

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

Harris, plaintiff below, recovered a verdict and judgment for $5,500 against Southern Stevedoring Corporation, defendant below, for personal injuries suffered by him when he was struck by a trailer which became uncoupled from its tractor as they were being operated by the defendant in loading a ship.

The ship, American Veteran, was owned by U. S. Lines, and the defendant had contracted to furnish it such stevedoring services as were required in the port of Norfolk. The plaintiff was employed as a checker by the U. S. Lines, with the duty of inspecting the cargo to be loaded by the defendant, seeing that the loading was properly done, and making reports to the ship owner as the work progressed.

The plaintiff was engaged in this work at the time he was injured, around 9:30 a.m., May 26, 1948. The ship was berthed at the northern side of army base Pier No. 1. The cargo immediately being loaded was a pile of oak planks, stacked in the housed-in part of the pier, and being hauled to the ship through a doorway in the shed on trailers pulled by tractors or motors operated by the defendant. This doorway was approximately opposite and south of No. 5 hatch, into which the planks were being loaded. A little to the east of the doorway, between it and the planks, were some steel drums and plaintiff was standing behind these drums facing the ship and watching the loading. The planks were some distance to his right. The loading had been in progress since about 8:30 a.m. The motors, with their trailers, had been running in front of him between the planks and the ship. One of these units, however, consisting of a motor and two trailers, after delivering its load to the ship, came back through the doorway at what the plaintiff described as a rapid rate of speed and made a sharp turn to go around behind plaintiff. When it did so, the motor proceeded straight ahead behind the plaintiff but the trailers broke loose from the motor, turned in toward the plaintiff and caught him between the end of the front trailer and one of the steel drums, breaking both bones of his right leg below the knee. He was painfully and seriously injured, requiring some two weeks of hospital treatment, and was unable to work for several months thereafter.

The defendant contended below and asserts here: (1) That the plaintiff was an employee of the defendant, confined to the rights provided by the Workmen's Compensation Act, and prohibited from maintaining this common-law action by that act (Acts 1918, ch. 400, p. 637, as amended; Code, 1942 (Michie), section 1887(1), et seq.; Code, 1950, section 65-1, et seq.); and (2) that the evidence failed to show actionable negligence on the part of the defendant.

The issue of whether the plaintiff was an employee of the defendant was specifically submitted to the jury. Their finding that he was not was amply supported by the evidence for the plaintiff, to the effect that he was employed by the dock superintendent of the U. S. Lines, who controlled all his actions and instructed him what to do; that he made report of his work each day to the dock superintendent, who alone had the right to hire and fire him, and that he received no instructions from the defendant and would not have had to obey them if he had, unless they coincided with the orders of the dock superintendent. Not only so, but the character of the plaintiff's work itself was evidence that he was necessarily an employee of the U. S. Lines. He was a checker, charged with the duty of inspecting and checking the cargo on the pier, seeing that it was placed in the ship where the ship owner wanted it to be, and whether any damage was done to it by the defendant in loading. This was service for the ship owner, to facilitate the unloading of the cargo and to place responsibility in event it was found damaged on delivery. He represented the U. S. Lines in this work, not the defendant.

The contract between defendant and U. S. Lines provided that the defendant should load the vessel at a rate per ton, and would furnish extra labor, when authorized, at cost plus ten per cent. and insurance. Defendant paid to the plaintiff his wages and reported the accident to the Industrial Commission for compensation, which the plaintiff refused. Defendant's president testified that in his opinion his company could discharge a person on its payroll but admitted that in an experience of twenty years he had never discharged a checker. Defendant relies on evidence of these facts to support its contention that the plaintiff was its employee. They are not sufficient to overcome the plaintiff's evidence to the contrary. Unless he was in fact defendant's employee, the efforts of defendant to bring him under its compensation insurance would not make him so against his will. The evidence for plaintiff, from the dock superintendent of U. S. Lines, was that plaintiff was not furnished by the defendant as extra labor, but furnished by the U. S. Lines and his work controlled by it. While he was paid his wages by the defendant, the defendant billed U. S. Lines for the amount and it was repaid by that company. The evidence supports the inference that this was done as a matter of convenience, since the plaintiff's hours of work were variable and of necessity must coincide with the work done by the defendant. If plaintiff was not paid for what he claimed was enough time, he complained to the dock superintendent and looked to him for correction.

Whether the relation of employer and employee exists in a given case depends upon the facts. As we have frequently said, the most significant fact bearing on that question is the power of control. Ideal Steam Laundry v. Williams, 153 Va. 176, 180, 149 S.E. 479, 480; Texas Co. v. Zeigler, 177 Va. 557, 14 S.E. (2d) 704; Tidewater Corp. v. McCormick, 189 Va. 158, 52 S.E. (2d) 61. In the last-named case, involving the same question, on different but related facts, we held that the defendant there had no power of control over the plaintiff, 'the most significant element bearing on the question of their relationship,' and that there was ample evidence to support the finding that the plaintiff was not the employee of the defendant. (189 Va. at p. 167, 52 S.E. (2d) at p. 65). We reach the same conclusion here. The facts of this case distinguish it from Waugh v. Rollison, 169 Va. 268, 192 S.E. 694, relied on by defendant.

The more difficult question is whether there was sufficient evidence to support the finding of the jury that the defendant was guilty of negligence which was a proximate cause of the plaintiff's injuries. The question is to be determined by the settled rule that, in view of the verdict, the evidence is to be considered in the light most favorable to the plaintiff and if reasonable men may fairly differ as to the proper inferences to be drawn from the facts proved, the issue is for the jury. Filer v. McNair, 158 Va. 88, 92, 163 S.E. 335, 337; Edgerton v. Norfolk Southern Bus Corp., 187 Va. 642, 653, 47 S.E. (2d) 409, 414.

The plaintiff alleged that the defendant's negligence consisted of operating the motor and trailers at excessive speed and in a defective condition. His testimony was that the motor was being run very fast, too fast for safety, so fast it was dangerous, and that when he was struck the print of his leg was left in the steel drum. He did not attempt to fix the speed any more definitely than that. These trailers weigh about 600 pounds each. The defendant's evidence was that the motor was controlled by a governor which did not permit a speed of more than six or seven miles an hour. The width of the motor and trailers...