Sykes v. Stone & Webster Eng'g Corp.

• Citation: 41 S.E.2d 469,186 Va. 116
• Court: Virginia Supreme Court
• Decision Date: 03 March 1947
• Parties: SYKES . v. STONE & WEBSTER ENGINEERING CORPORATION.

41 S.E.2d 469

186 Va. 116

SYKES .

v.STONE & WEBSTER ENGINEERING CORPORATION.

Supreme Court of Appeals of Virginia.

March 3, 1947.

Rehearing Denied April 24, 1947..

Error to Law and Equity Court of City of Richmond; Willis D. Miller, Judge.

Suit for wrongful death, brought by notice of motion for judgment, by May-belle F. Sykes, administratrix of Raymond Harris Sykes, against Stone & Webster Engineering Corporation. To review a judgment for defendant, plaintiff brings error.

Affirmed.

Before HOLT, C. J., and HUDGINS, GREGORY, EGGLESTON, SPRATLEY, and BUCHANAN, J J.

John G. May, Jr., Robert Lewis Young, Charles W. Crowder, and Joseph J. Williams, Jr., all of Richmond, for plaintiffs in error.

Bowles, Anderson & Boyd, of Richmond, for defendant in error.

BUCHANAN, Justice.

The plaintiff, administratrix of Raymond Harris Sykes, brought suit against defendant, Stone & Webster Engineering Corporation, by notice of motion for judgment, claiming damages for the wrongful death of her intestate due to the negligence of the defendant. The negligence alleged was that her intestate was at work on one of the lower landings of a power station then being constructed in Chesterfield county; that the defendant was also engaged in work on said building in connection with its construction and equipment, above where the intestate was working, and negligently allowed a piece of timber to fall or be thrown on intestate, causing his death.

To this action the defendant filed a plea in abatement and motion to quash, and separate pleas of res adjudicata and estoppel by former judgment, payment and accord and satisfaction, and the general issue. In these special pleas the defendant alleged that it was principal contractor on said power station; that Richmond Structural Steel Company, Inc., was its subcontractor, and that plaintiff's intestate was an employe of said subcontractor; that it and its subcontractor carried insurance pursuant to the Workmen's Compensation Act; that the plaintiff, for herself and other beneficiaries, had made a written agreement with said subcontractor and Liberty Mutual Insurance Company, its insurance carrier, for the payment of compensation pursuant to the Compensation Act; that pursuant to said agreement the Industrial Commission, in a proceeding to which plaintiff and defendant were parties, made an award directing payment of compensation by Liberty Mutual Insurance Company as insurance carrier of said subcontractor. A certified copy of the opinion and award of the Industrial Commission was exhibited with each plea. The pleas averred that the award of the Industrial Commission wasnot appealed from, had become final and binding, and, in substance, that the remedy so followed by plaintiff was exclusive and the present action at common law could not now be maintained by her.

The plaintiff moved to strike out the special pleas as offering no defense. The trial court overruled that motion and its action is the subject of the first assignment of error. This raises the question whether the employe of a subcontractor can maintain a common law action against the general contractor for an injury arising out of and in the course of his employment; or, stated another way, is the general contractor such "other party" as that a common law action against it has not been taken away by the compensation law? The answer is to be found in the construction of section 12 and section 20(a) of the Workmen's Compensation Act, Code 1942 (Mich-ie), sec. 1887(1) etc.

The first paragraph of section 12 provides that the rights and remedies granted to an employe by the Act, where he and his employer have accepted the provisions of the Act, shall exclude all other rights and remedies at common law or otherwise on account of the injury or death. That paragraph was all there was of that section in the original Compensation Act, Acts 1918, p. 640, and it was considered as meaning just that and as barring any action at common law against all persons for the injury or death. The amendment of 1920, Acts 1920, p. 256, which added the four additional paragraphs of the present section, had the effect of destroying that restriction and allowing such action against a person other than the employer. Southern Ry. Co. v. United States Casualty Co., 136 Va. 475, 118 S.E. 266.

Since by section 12 the rights and remedies of the employe are made exclusive against the employer, and permitted against "any other party, " or "any person other than the employer, " it becomes necessary to inquire who is such other party. That question was answered in Feitig v. Chalkley, 185 Va. 96, 38 S.E.2d 73, 76. There Mr. Justice Hudgins for the court reviewed the history of section 12, and held that an injury caused by the negligence of a fellow servant was within the field of industrial accidents in which it was the purpose of the Compensation Act to cast the loss upon the business, and that therefore the injured employe had no common law right of action against his fellow servant. He said:

"When the theory, the history and the broad purpose of the act are considered, it would seem that 'other party, ' as used in section 12, refers exclusively to those persons who are strangers to the employment and the work, and does not include those who have accepted the act and are within the express terms of section 11--'he (employer) or those conducting his business.' "

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. Plaintiff contends that the fifth paragraph of section 12 prevents that result. That paragraph, which was added to section 12 in 1920, removed from it in 1924 and restored to it in 1936, is as follows:

"Nothing in this act contained shall be construed to make, for the purposes of this act, the employees of an independent contractor the employees of the person or corporation employing or contracting with such independent contractor."

That paragraph must in turn be read and reconciled with section 20(a). That section, as originally enacted in 1918, contained only one paragraph, in which the words "principal contractor" were used where the word "owner" occurs in the present first paragraph of this section 20(a). The section was amended in 1924, Acts 1924, p. 478, due probably to the decision in Bamber v. City of Norfolk, 138 Va. 26, 121 S.E. 564, referred to later herein, holding that the city as owner of the work after it was finished was not included in the term "principal contractor" as then used in the Act.

It is to be noted that the present section 20(a) contains four paragraphs. The first covers a case where the "owner" undertakes to perform work which is part of his trade, business or occupation and contracts with a "subcontractor" to do all or part ofit. In that case the owner is liable to pay-compensation to any workman employed in the work (by any subcontractor) just as if the workman had been immediately employed by the owner.

The second paragraph covers the case where a "contractor" contracts to perform work for another person (e. g. the owner), which work is not part of the trade, business or occupation of such other person (owner), and contracts with a "subcontractor" to do all or part of it, then the contractor (but not the owner) shall be liable to pay compensation to any workman employed in the work (by any subcontractor) just as if the workman had been immediately employed by the contractor.

And so on as to owner, or principal contractor, and subcontractors, in descending order, in the manner provided by the last two paragraphs.

The section makes the owner liable if the workman, no matter how far down the line, is doing work which the owner has undertaken to perform as a part of his own trade, business or occupation. But if the work which the workman is doing is not a part of the trade, business or occupation of the owner, and the owner contracts with a contractor to do it, the contractor is liable to the workman, but not the owner. As between the owner and such contractor, the latter is an independent contractor, and the last paragraph of section 12, above quoted, declares that such workman shall not be taken to be the employe of such owner. And such liability remains on the contractor so long as any workman in the descending scale is performing work which is part of the trade, business or occupation of the contractor; but such liability does not extend to a workman who is performing work which may have some relation to the work of the original contractor but which is not a part of the trade, business or occupation of the original contractor.

It clearly appears to be the purpose of section 20(a) 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 per form 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 liable to that employe for compensation under section 20(a). At that point paragraph 5 of section 12 intervenes and the employe's right of action at common law is preserved.

The fifth paragraph of section 12 was part of that section when Bamber v. City of Norfolk, supra [138 Va. 26, 121 S.E. 565], was decided. There the city contracted with Birchett to erect a standpipe outside the city. Bamber was an employe of Birchett and was killed while engaged in the work. The question involved was whether Birchett was a subcontractor of the city so as to make the city liable as "principal contractor" for compensation to the dependents of...