Stout v. Onorati

• Decision Date: 06 June 1980
• Docket Number: 780714,Nos. 780702,s. 780702
• Citation: 267 S.E.2d 154,221 Va. 143
• Parties: Walter W. STOUT, III, Virginia Administrator, etc. v. Mario ONORATI, t/a, etc., et al. MOBILITY, INC. v. Mario ONORATI, t/a, etc., et al. Record
• Court: Virginia Supreme Court

Page 154

267 S.E.2d 154

221 Va. 143

Walter W. STOUT, III, Virginia Administrator, etc. v. Mario ONORATI, t/a, etc., et al.

MOBILITY, INC. v. Mario ONORATI, t/a, etc., et al.

Record Nos. 780702, 780714.

Supreme Court of Virginia.

June 6, 1980.

Walter W. Stout, III, Richmond (Thomas L. Dettelbach, Cleveland, Ohio, Shaia, Stout & Markow, P. C., Richmond, Kahn, Kleinman, Yanowitz & Arnson, Cleveland, Ohio, on brief), for appellant Stout.

Rufus G. Coldwell, Jr., Richmond (William R. Allcott, Jr., Browder, Russell, Little, Morris & Butcher, Richmond, on brief), for appellees.

William R. Cogar, Richmond (Stephen W. Brewer; Mays, Valentine, Davenport & Moore, Richmond, on briefs), for appellant Mobility, Inc.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.

COMPTON, Justice.

In this appeal of a wrongful death action, the sole issue we decide in whether two of the defendants were "other parties" within the meaning of the Virginia Workmen's Compensation Law. We conclude they were not and affirm.

Appellant Walter W. Stout, III, Virginia Administrator for the Estate of Thomas C. Halligan, deceased, filed this suit in September of 1976 against appellant Mobility, Inc., appellee Mario Onorati, trading as Moose's Quality Tractor Parts, and appellee Freddie L. Davis. The plaintiff sought recovery in damages on grounds of negligence and breach of warranty in connection with the death of Halligan which occurred in the City of Richmond on September 18, 1974. Moose's and Davis filed a special plea asserting the trial court was without jurisdiction to hear the case as to them because the exclusive rights and remedies of plaintiff's decedent and his beneficiaries were covered by applicable workmen's compensation statutes.

Following an ore tenus hearing and the taking of a de bene esse deposition in June of 1977, the trial court sustained the special plea and in February of 1978 entered an order dismissing the action as to Moose's and Davis. Halligan's administrator and Mobility filed separate petitions for appeal which we granted and consolidated for hearing, limiting consideration of the Halligan appeal to the same two issues raised by Mobility.

There are several conflicts and inconsistencies in the evidence. In addition, diverse conclusions of fact may be drawn from portions of the testimony. Under familiar principles, we will recite the facts in the light most favorable to the parties prevailing below.

Mobility was a Minnesota corporation engaged in the manufacture of heavy construction equipment such as front-end loaders and spreaders. Fleming Manufacturing Co. was also a Minnesota corporation, operating as a private carrier of goods and engaged in transporting equipment for Mobility and others. Halligan was a truck driver employed by Fleming.

Moose's was a Virginia business located in Richmond engaged in buying secondhand pieces of farm equipment for the purpose of salvaging and reselling their usable parts; it was also engaged in storing products manufactured by Mobility. As a part of the latter activity, Moose's aided in unloading those items upon delivery by Fleming. Moose's premises covered approximately two acres and included several buildings used "for warehousing of parts" and "a couple of sheds" employed for storage of equipment.

Several years before the accident in question, Moose's had verbally contracted "to unload, help unload, and store (Mobility's) equipment" in its Richmond sheds to be later released to Mobility salesmen or customers. The owner of Moose's testified that because of the space available at his business location, he had "all kinds of ways to make a dollar." He said, "If the people come to me and want to store equipment, I will store it for a certain amount of dollars." The charge to perform these functions for Mobility was $25 for each piece of equipment, and Moose's unloaded and stored approximately 20 pieces of Mobility's equipment annually. Davis was employed by Moose's.

Halligan was under contract with Fleming as an "over the road" truck driver. Pursuant to this agreement, Halligan was also obligated to "help unload" his cargo for which he was paid extra compensation. The evidence showed that Moose's employees routinely assisted Fleming drivers in unloading the equipment and relied on the drivers to help, because "they loaded it, and, so, they knew how to unload (the freight)."

On the day in question, Halligan had driven a Fleming tractor-trailer unit from Minnesota to Virginia loaded with five pieces of heavy equipment, including a Mobility front-end loader called a "Big Dipper." Because the small size of Moose's loading dock would not accommodate the larger Fleming trucks, it was necessary to transfer the equipment to be stored at Moose's from the Fleming trailer onto a Moose's truck to be then unloaded at Moose's loading dock.

Just prior to the accident, the unloading of one Big Dipper and two spreaders had commenced. Davis backed Moose's truck perpendicular to the side of Fleming's trailer forming a "T." Halligan unchained the load. Davis mounted the Big Dipper and drove it forward off the Fleming truck and onto Moose's vehicle. The four wheels of the Big Dipper moved over the bed of Moose's truck. The two front wheels of the Big Dipper were touching Moose's vehicle but the rear two wheels were not because the counterweight at the rear of the equipment "hung up" on the Fleming vehicle.

Then Halligan and Davis, using a jack, raised the Big Dipper until it was free of Fleming's truck and both assisted in placing "some boards" beneath the rear wheels. Halligan then drove Moose's truck about five feet forward with Davis on the Big Dipper applying its brakes to hold it in place. Halligan then alighted from the truck to secure the chains on two Big Dippers that were to remain on the Fleming truck.

While Halligan was performing that task, Davis jacked the Big Dipper on Moose's truck up enough to free it of the boards and allowed it to settle to the bed of the truck. At that time, the Big Dipper rolled "or whatever" from the back of Moose's truck onto Halligan, killing him instantly.

The survivors of Halligan, a resident of Minnesota, have recovered workmen's compensation benefits from Fleming under the Minnesota Workmen's Compensation Act.

In a letter opinion sustaining the special plea, the trial judge, applying Virginia law, found:

The decedent was required to assist in the unloading of Mobility's equipment at the defendant (Moose's) Quality Tractor Parts. The defendant Freddie L. Davis, an employee of (Moose's), was paid to assist in the unloading of Mobility equipment. The decedent, Davis and (Moose's), under the facts, were, at the time of the decedent's death, all engaged in the trade, business or occupation of each other and none were "other parties" within the meaning and intendment of the Virginia Workmen's Compensation Act.

In addition, the trial judge rejected plaintiff's contention that under prevailing conflicts of laws principles, the substantive law of Minnesota and not Virginia should be applied in determining the issues raised by the special plea. That ruling was the subject of the other assignment of error made by both plaintiff and Mobility upon which we granted the appeals. But on brief and during oral argument, Mobility, Moose's and Davis all represented that it is "immaterial" which law applies here because the "same ultimate result is reached under Virginia or Minnesota law."...