Sykes v. Stone & Webster Eng. Corp.
| Decision Date | 03 March 1947 |
| Docket Number | Record No. 3151. |
| Court | Virginia Supreme Court |
| Parties | MAYBELLE F. SYKES, ADM'X, ETC. v. STONE & WEBSTER ENGINEERING CORP. |
Present, Holt, C.J., and Hudgins, Gregory, Eggleston, Spratley and Buchanan, JJ.
1. WORKMEN'S COMPENSATION — Exclusiveness of Act — Whether Employee of Subcontractor Can Maintain Common-Law Action against General Contractor — Construction of Code Sections 1887(12) and 1887(20). — Section 1887(20) of the Code of 1942 (Michie) makes the owner of any work liable if the workman, no matter how far down the line of employment, 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 Code section 1887(12) (Michie), declares that such workman shall not be taken to be the employee 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.
2. WORKMEN'S COMPENSATION — Exclusiveness of Act — Whether Employee of Subcontractor Can Maintain Common-Law Action against General Contractor — Case at Bar. — The instant case was an action by an administratrix claiming damages for the wrongful death of her intestate due to the negligence of defendant. Defendant contended that it was the principal contractor on the work on which the employee was killed, and that its subcontractor carried insurance pursuant to the Workmen's Compensation Act, and that an award had been made by the Industrial Commission in a proceeding to which plaintiff and defendant were parties. The question involved was whether an employee of a subcontractor could maintain a common-law action against the general contractor for an injury arising out of and in the course of his employment, or was the general contractor such "other party" within the meaning of section 1887(12) of the Code of 1942 (Michie), which provides for actions against any other party than the employer.
Held: That under the Compensation Act a principal or general contractor is liable for compensation to the employee of a subcontractor where the work being performed by the employee is part of the general contractor's trade, business or occupation, and that for the purposes of the Act, such employee of the subcontractor is the employee of the general contractor. Between then the Act supplies the relationship of master and servant. The rights of the servant against the master given by the Act are exclusive and the common-law right of action is taken away.
3. WORKMEN'S COMPENSATION — Award of Industrial Commission as Establishing Relationship of Parties — Case at Bar. — The instant case was an action by an administratrix claiming damages for the wrongful death of her intestate due to the negligence of defendant. Defendant contended that it was the principal contractor on the work on which the employee was killed, and that its subcontractor carried insurance pursuant to the Workmen's Compensation Act, and that an award had been made by the Industrial Commission in a proceeding to which plaintiff and defendant were parties. The question involved was whether an employee of a subcontractor could maintain a common-law action against the general contractor for an injury arising out of and in the course of his employment, or was the general contractor such "other party" within the meaning of section 1887(12) of the Code of 1942 (Michie), which provides for actions against any other party than the employer. The trial court held that as a matter of law, and also as a matter of fact, the relationship between defendant and the other company was that of principal contractor and subcontractor, basing the conclusion on the ground that the award of the Industrial Commission conclusively established the relationship.
Held: No error. The proceedings before the Industrial Commission determined the relationship of the parties and that relationship became res adjudicata, or a matter of estoppel by judgment.
4. WORKMEN'S COMPENSATION — Right of Insurance Carrier of Subcontractor to Indemnity — Case at Bar. — The instant case was an action by an administratrix claiming damages for the wrongful death of her intestate due to the negligence of defendant. Defendant contended that it was the principal contractor on the work on which the employee was killed, and that its subcontractor carried insurance pursuant to the Workmen's Compensation Act, and that an award had been made by the Industrial Commission in a proceeding to which plaintiff and defendant were parties. The question involved was whether an employee of a subcontractor could maintain a common-law action against the general contractor for an injury arising out of and in the course of his employment, or was the general contractor such "other party" within the meaning of section 1887(12) of the Code of 1942 (Michie), which provides for actions against any other party than the employer. The insurance carrier of the subcontractor asked to amend the notice of motion for judgment to allege that as such it had been compelled to pay certain sums to the dependents of decedent which it was entitled to recover from defendant, pursuant to the provisions of section 1887(12) of the Code of 1942 (Michie), and by way of exoneration and indemnity. The trial court refused the amendment and error was assigned.
Held: No error. While the liability of the principal contractor was directly to the workman, as between the principal contractor and the subcontractor, the liability of the principal contractor was secondary, and the principle of exoneration does not operate in favor of one primarily liable against one secondarily liable. The proposed amendment sought to set up a new right, based on an implied contract, independent and outside of the Compensation Act. Section 1887(12) of the Code of 1942 (Michie) provides that it should not be construed as conferring upon the insurance carrier any other or further rights than those existing in the employer at the time of the injury of his employee. It followed that under the act no greater or other rights were conferred upon the insurance carrier than were enjoyed by the subcontractor.
5. INDEMNITY — Basis — Discharge of Contractual Obligation Express or Implied. — The right to indemnity or exoneration for a base must rest upon the fact that the party seeking indemnity has discharged, under contractual obligation express or implied, the obligation of the one primarily liable.
Error to a judgment of the Law and Equity Court of the city of Richmond. Hon. Willis D. Miller, judge presiding.
The opinion states the case.
John G. May, Jr., Robert Lewis Young, Charles W. Crowder and Joseph J. Williams, Jr., for the plaintiffs in error.
Bowles, Anderson & Boyd, for the defendant in error.
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 employee 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 was not 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...
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