Stover v. Ratliff, 791362
| Decision Date | 26 November 1980 |
| Docket Number | No. 791362,791362 |
| Court | Virginia Supreme Court |
| Parties | Austin Lee STOVER v. Ellen J. RATLIFF, Administrator, etc. Record |
James V. Lane, Harrisonburg (Stephen T. Heitz, Litten, Sipe & Miller, Harrisonburg, on briefs), for appellant.
Glenn M. Hodge, Harrisonburg (M. Bruce Wallinger, Wharton, Aldhizer & Weaver, Harrisonburg, on brief), for appellee.
Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, POFF, COMPTON and THOMPSON, JJ.
In this workmen's compensation case, the Industrial Commission awarded compensation for disability resulting from injuries sustained by the claimant, Hugh F. Flick, Jr., in an industrial accident. 1 Despite the appellee's attempt to inject a new issue on appeal, we decide only one question, viz., whether credible evidence supports the Commission's findings that the employer, Austin Lee Stover, had three or more employees regularly in service and, therefore, that he was subject to the provisions of the Workmen's Compensation Act. 2
The record shows that Stover conducted a farming operation on some 70 acres of land near Broadway in Rockingham County. In the latter part of 1976, Stover employed Flick as a farmhand. Working as the only farm employee, Flick earned a total of $303.75 during the last seven weeks of 1976. He sustained his injuries January 17, 1977.
In addition to his farming operation, Stover was employed by Taylor Beef Company to purchase cattle and ship them to Taylor's plant in Pennsylvania. For his services, Stover was paid a salary and other compensation of $1.00 per loaded mile for transportation of the cattle purchased for Taylor. Occasionally, awaiting acquisition of a full load, Stover brought to his farm cattle he had purchased on Taylor's account.
The Commission found that Stover's farming and trucking operations merged to the extent "that they became one business and the employees of each operation counted as the employees of one business." This finding is not an issue on appeal. We look, therefore, to the evidence concerning those persons engaged in the combined operation to determine whether the Commission correctly found Stover had three or more employees regularly in service. 3
As has been noted, Flick was the only employee engaged in the farming operation. For the purposes of this discussion, we will assume that Flick was an employee regularly in service in the combined operation.
In connection with the hauling business, Stover owned two tractors and three trailers. He engaged various drivers to operate his tractor-trailer units. He engaged other persons, known as "gypsies," to furnish their own tractors and pull his third trailer. Testifying below, Stover stated that one person, Jim Herring, was a "regular driver." We will assume that this statement justifies counting Herring as an employee regularly in service. Stover, therefore, had two employees regularly in service in the combined operation.
Beyond this point, however, if the unsatisfactory record in this case permits any definitive conclusion, it supports the view, urged by Stover, that the persons engaged in the trucking operation, other than Herring, were independent contractors or subcontractors. As such, they were not countable as employees within the meaning of the Workmen's Compensation Act. Crowder v. Haymaker, 164 Va. 77, 178 S.E. 803 (1935); Baker v. Nussman, 152 Va. 293, 147 S.E. 246 (1929). This result obtains because the Act applies to the contractual relationship of master and servant. Mann v. Lynchburg, 129 Va. 453, 459, 106 S.E. 371, 373 (1921).
In a similar situation, we have stated:
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