Walker v. United States Gypsum Company

• Decision Date: 05 October 1959
• Docket Number: No. 7846.,7846.
• Citation: 270 F.2d 857
• Parties: James M. WALKER, Appellant, v. UNITED STATES GYPSUM COMPANY, Defendant and Third-Party Plaintiff, and Coley & Peterson, Incorporated, Third-Party Defendant, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

270 F.2d 857 (1959)

James M. WALKER, Appellant, v. UNITED STATES GYPSUM COMPANY, Defendant and Third-Party Plaintiff, and Coley & Peterson, Incorporated, Third-Party Defendant, Appellees.

No. 7846.

United States Court of Appeals Fourth Circuit.

Argued April 20, 1959.

Decided October 5, 1959.

Sidney H. Kelsey, Norfolk, Va., for appellant.

L. S. Parsons and Leigh D. Williams, Norfolk, Va. (Parsons, Stant, Parsons & Mirman, Williams, Cocke, Worrell & Kelly, Charles L. Kaufman, and Ira B. Hall, Norfolk, Va., on brief), for appellees.

Before SOBELOFF, Chief Judge, and SOPER and HAYNSWORTH, Circuit Judges.

HAYNSWORTH, Circuit Judge.

The District Court granted summary judgment for the defendant in this action for personal injuries upon the ground that the plaintiff's exclusive remedy was a proceeding before the Industrial Commission of Virginia. The plaintiff contends that the question of his employment status should have been submitted to a jury.

Though the courts of a state have construed its Workmen's Compensation Act as a limitation upon the jurisdiction of its common law courts so as to require the court, rather than a jury, to resolve questions of fact as well as of law in determining the jurisdictional fact of employment status,¹ the Supreme Court has held that in the Federal diversity jurisdiction factual issues involved in that determination must be submitted to a jury. Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953; Magenau v. Aetna Freight Lines, Inc., 360 U.S. 273, 79 S.Ct. 1184, 3 L.Ed.2d 1224.

The established procedures in the federal courts for the determination of jurisdictional questions are not at variance with the prevailing procedures in the state courts. There is no right to a jury trial of disputed facts involved in the determination of a jurisdictional question. In his discretion, the trial judge may find the facts, or he may submit the questions of fact to an advisory jury.² In the context in which the question here arises, lower federal courts had held employment status to be jurisdictional, rather than defensive, and have found the relevant facts without the aid of juries.³ In a different context, the Supreme Court had held employment status to be jurisdictional.⁴

When the Supreme Court held in Byrd and Magenau that state procedures under which the judge finds facts which the state has classified as jurisdictional are inconsistent with federal juridical policy, it made no reference to the established rule in the federal courts that jurisdictional facts are for court determination. Though the federal rule and the rejected state procedure appear identical when the fact in issue is clearly jurisdictional, we ought not to assume that the federal rule has been overturned by implication. It is too firmly founded in a long course of decision. It is not without practical reason for its continuance. Surely, if it was intended to modify such a rule in any way, the Court would have given direct attention to it.

Though it is not clear to us that the Supreme Court in Byrd and Magenau accepted as established the fact that the state had classified the issue as jurisdictional,⁵ it may be that we are to understand that state classification of its limitations upon its common law courts is not binding upon a federal court exercising its diversity jurisdiction. We need not now consider, however, the broad implications of Byrd and Magenau.⁶ We are twice told that this particular fact, if controverted, is to be submitted to a jury in a federal court, though it be classified and treated by the state as it is in South Carolina and Pennsylvania.

Virginia's classification of the issue is less clear than South Carolina's. Under the statute, the exclusive remedy is a proceeding in the Industrial Commission, if there is an employment relation, as defined in the statutes, between the parties.⁷ The question of employment status has arisen in a number of personal injury actions brought in the common law courts of Virginia. In some of them, the fact questions involved were considered and determined by the trial court,⁸ but the parties apparently assumed that to be the appropriate procedure; no one was demanding a submission of the fact questions to a jury, and the Supreme Court of Appeals of Virginia did not adjudicate the right. In another,⁹ the trial judge had submitted the sharply disputed fact questions to a jury, and the Supreme Court of Appeals did not consider whether, in his discretion, he might have decided them himself. In yet another,¹⁰ a jury verdict was set aside and the case dismissed upon the ground that, while the testimony was in conflict, there was a fatal inconsistency in the claimant's position on the merits and his denial of an employment relationship. In that case, however, the court answered an objection that the employment status question had not been properly raised by saying the question was jurisdictional, noticeable at any time by the trial or appellate court. It specifically said that Virginia's Workmen's Compensation Act had deprived her common law courts of jurisdiction of the subject matter of claims within the coverage of that act.¹¹

Under these circumstances, we need not, indeed we may not, speculate about Virginia's resolution of this precise question. Under Byrd and Magenau, we must treat the plea as an affirmative defense and hold that any issue of fact involved should have been submitted to a jury, as demanded by the plaintiff.

It certainly does not follow, however, that, if there is no issue of fact genuinely in dispute, the question of employment status must be submitted to a jury. Whether the Industrial Commission or the common law court is the exclusive and appropriate forum for the adjudication of the rights of the injured claimant is a preliminary question, related only collaterally to the substantive cause of action. This sort of question is peculiarly appropriate for summary judgment when there is no genuinely disputed issue of fact. The parties should not be put to a long and expensive trial only to have the court discover at the end that the case should have been brought in another tribunal. Nor should the parties and the public suffer the delay and dislocation which necessarily follow if crowded jury trial dockets are burdened with cases in which there is no triable issue. Rule 56, Fed.Rules Civ.Proc. 28 U.S.C.A., is designed to insure that they need not.

We thus turn to consider whether there was a disputed issue of fact for submission to a jury.

The defendant, a large manufacturer of building materials, filed a special plea that the plaintiff was its employee within the meaning of Virginia's Workmen's Compensation Act. The plea was supported by an affidavit of the Works Manager of the Norfolk Plant, in which it was stated that the construction work was being carried on by Gypsum as owner-contractor, and that the work being done was Gypsum's trade and business. In the plea, the defendant asked for a hearing and that the case be dismissed.

The Court considered the plea and the supporting affidavit. Though the plaintiff filed no countervailing affidavit, the Court directed that the testimony of the Works Manager, Thompson, be taken and that the attorney for the plaintiff be afforded an opportunity to cross examine him. On the appointed day Thompson was sworn, was examined by counsel for Gypsum and extensively cross examined by the attorney for the plaintiff. No other evidence was offered.

The record thus made discloses that Gypsum has an engineering division and a construction division. The construction division has its headquarters in Gypsum's home office in Chicago, where there are as many as 35 to 40 employees engaged in its work. Employees of the construction division at various plants in the field may number several hundred, 32 being regularly assigned to the Norfolk plant at the time of the accident.

When new construction is contemplated the engineering and construction divisions work together, sometimes with the assistance of outside consultants, to develop detailed plans and specifications. The construction work, itself, is done by the construction division, though when an entirely new plant is being erected, some or all of the work may be subcontracted. Plant additions, modernizations and rearrangements were handled in similar fashion, except that the construction division was more likely to execute all of the work in those cases than in the erection of an entirely new plant.

The Norfolk plant had been built in 1949, and in 1955 it was enlarged by a plant addition, which required certain work in the old building, including the relocation of sprinkler system pipes and other pipe lines. For the new addition Gypsum acted as owner-contractor. There was no independent general contractor on the job, but contracts were entered into with several different companies by which each undertook to do certain portions of the work. The work was supervised by a general construction superintendent and 15 supervisors, all being employees of Gypsum's construction division, responsible directly to the head office of that division in Chicago. They supervised and coordinated all of the work, a function of a general contractor.

The 32 mechanics in the construction division regularly assigned to the Norfolk plant were generally responsible for plant maintenance, repairs, renovations, and structural and mechanical changes. They did new construction work. Each of them was carried on the payroll as a mechanic, no one of them being classified by a particular trade, but they did plumbing work, as well as electrical, carpentry, and other work. During the progress of the work in 1955, these 32 mechanics, or some of them, were engaged in removing and relocating pipe lines in the old building to accommodate the new construction, or to tie in with it. The plant was still in operation, however, so that, with their other duties, ...