Steele v. Eaton, 117-70

• Decision Date: 07 December 1971
• Docket Number: No. 117-70,117-70
• Citation: 285 A.2d 749,130 Vt. 1
• Court: Vermont Supreme Court
• Parties: Paul A. STEELE v. John C. EATON et al.

Page 749

285 A.2d 749

130 Vt. 1

Paul A. STEELE v. John C. EATON et al.

No. 117-70.

Supreme Court of Vermont.

Dec. 7, 1971.

Gerard F. Trudeau, Middlebury, for plaintiff.

Wilson, Curtis, Bryan, Quinn & Jenkins, Burlington, for defendants.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

BARNEY, Justice.

The plaintiff lost the fingers of his right hand in an industrial accident. He has received a workmen's compensation award through the insurance carrier, Employers Mutual Liability Insurance Company of Wisconsin, of his employer, Otter Creek Corporation. In this action seeking recovery in a civil action sounding in negligence, the plaintiff has joined both his employer and the insurance carrier, and, additionally, John Eaton, president and principal stockholder of the Otter Creek Corporation, Eaton Lumber Company, another corporation principally owned by John Eaton and insured by Employers Mutual, and one David Barry, the immediate supervisor of the plaintiff at his work.

Two of these parties have been discharged from the litigation without contest here. Otter Creek Corporation, the corporate employer of the plaintiff, was excused since, in view of the exclusiveness of the workmen's compensation award the plaintiff sought no other recovery directly against it. As to David Barry, the plaintiff entered the cause discontinued.

Under the workmen's compensation law of Vermont, an injured employee has the right to pursue his remedy against any person other than his employer who were so related to the cause of his injury that a legal liability for his damage arose. 21 V.S.A. § 624; Herbert v. Layman and Braun, 125 Vt. 481, 486, 218 A.2d 706. His action against the remaining defendants was brought under the authority of this section. The trial court ordered that verdicts be directed in favor of each of the remaining defendants. It is from this decision that the plaintiff appeals.

The basis for charging each of these defendants with responsibility for the plaintiff's injury is different, so that each must be separately considered. Dealing first with the Eaton Lumber Company, the plaintiff seems to be saying that since it is another corporation of which John Eaton owns the bulk of the stock and which is insured by Employers Mutual, it must bear some responsibility for the conditions under which the plaintiff worked, and for his injury. But if it did stand in a position of responsibility of this kind, it must be as the plaintiff's true employer and thereby come under the provisions of the workmen's compensation act that provides that that act shall be the exclusive remedy against a covered employer. Quinn v. Pate, 124 Vt. 121, 124, 197 A.2d 795. If it does not stand in that relationship to the plaintiff, as the facts seem to indicate it does not, it has no responsible relationship to this litigation, the happenstance that it is owned by John Eaton contributing nothing by way of relevancy to this dispute. Therefore, a verdict in its favor was properly directed.

Since the Employers Mutual Liability Insurance Company ordinarily stands in the shoes of the employer, Morrisseau v. Legac, 123 Vt. 70, 76, 181 A.2d 53, there would ordinarily be no separate remedy here, either. But the plaintiff urges a duty on the part of the insurer to inspect the place of employment for safety, and a breach of that duty justifying recovery by the plaintiff. There is a provision in the policy reserving the right in the insurer to make an inspection. There is no evidence that this was the practice with this company, or that the plaintiff, in anyway, knew, relied, or expected such inspections on the part of the insurer. There is nothing in the case to raise, as a matter of law, a duty to make a safety inspection on the part of the insurer, nor is there evidence that any such inspection was in fact undertaken and negligently performed, or amounting to a holding out to this plaintiff that he could rely on any such inspections. The record, in no fashion, supports the plaintiff's claim in this particular, and the direction of a verdict was required.

The plaintiff also makes a claim against John Eaton, the principal owner and president of the two corporations, Otter Creek Corporation and Eaton Lumber Corporation. Obviously, recovery cannot be had against him as employer, since he would be entitled to all the statutory defenses of an employer, already mentioned. Thus the suit against him must be based on some liability as a co-employee. Herbert v. Layman and Braun, supra, 125 Vt. 481, 484, 218 A.2d 706.

This being so, the acts of negligence for which he can be held responsible are not those such as a master or employer are liable under the doctrine of respondeat superior, but must be acts constituting direct negligence toward this plaintiff. The defendant, John Eaton, can be held personally liable for only those tortious or negligent acts against the plaintiff in which he participated or cooperated, or specifically directed others to do. Parker v. Cone, 104 Vt. 421, 425, 160 A. 246.

The accident, described in terms of the evidence most strongly favoring the plaintiff, happened in this manner. The plaintiff was working feeding wood slabs into a large machine that converted the slabs into wood chips. The machine was so large that it, in effect, was a two-story...