Williams v. E. T. Gresham Co.
| Decision Date | 30 November 1959 |
| Docket Number | No. 4994,4994 |
| Citation | 201 Va. 457,111 S.E.2d 498 |
| Parties | HENRY HAROLD WILLIAMS v. E. T. GRESHAM CO., INC. Record |
| Court | Virginia Supreme Court |
Joseph A. Gawrys and Hugh S. Meredith (Vandeventer, Black & Meredith, on brief), for the plaintiff in error.
James A. Howard and Berryman Green, IV (Breeden, Howard & MacMillan, on brief), for the defendant in error.
On April 17, 1958, Henry Harold Williams, an employee of Chesapeake Bay Ferry District, instituted an action at law against E. T. Gresham Company, Inc. for damages in the sum of $100,000 arising from injuries he sustained on April 23, 1957, when the follow block of the corporation's pile driving apparatus fell and struck him while it was engaged in driving piles at Little Creek for Chesapeake Bay Ferry District, hereinafter referred to as Ferry District.
The litigants will be referred to at times as plaintiff and defendant in accordance with their respective positions in the court below.
Williams alleged defendant was negligent in furnishing Ferry District 'defective or unsafe equipment' and that defendant's employees operated the equipment in a negligent manner. Defendant filed responsive pleadings denying primary negligence on its part and asserted plaintiff was guilty of contributory negligence. In addition, defendant interposed a special plea alleging that plaintiff's action was barred by virtue of the provisions of the Virginia Workmen's Compensation Act. (Title 65, Code 1950). The trial court overruled defendant's motion to strike at the conclusion of plaintiff's evidence and also at the conclusion of all the evidence. The motions were made on the grounds that no negligence had been shown on the part of defendant or its employees and that the evidence conclusively established that plaintiff's alleged cause of action was barred by the provisions of the Workmen's Compensation Act. The jury returned a verdict for defendant, and plaintiff moved to set it aside as being contrary to the law and the evidence. This motion was likewise overruled and judgment was entered on the verdict. We granted plaintiff a writ of error.
Plaintiff filed a number of assignments of error which challenge the sufficiency of the evidence to sustain the verdict, the court's ruling on instructions and admissibility of certain evidence. It is unnecessary that they be considered because we have concluded that the case should be disposed of on defendant's assignment of cross-error that plaintiff's exclusive remedy was under the Workmen's Compensation Act and that the present common law action cannot be maintained.
Chesapeake Bay Ferry District and Chesapeake Bay Ferry Commission, the governing board of the Ferry District, were created by Chapter 693 of the 1954 Acts of Assembly, approved April 7, 1954. In it the Ferry District was designated a political subdivision of the Commonwealth. The Commission was authorized and empowered, among other things, to acquire, construct, operate and maintain a project to provide vehicular and passenger ferry service between the city of Hampton and the county of Northampton, between the counties of Princess Anne and Northampton, and between certain other points within the boundaries of the district where such ferry service would be a connecting link in the State Highway System, and consisting of such vessels, approaches, termini, buildings and other equipment as might be deemed necessary by the Commission for the operation of the project. The Act also provided for the issuance of ferry revenue bonds, payable solely from earnings, and provided for the collection of tolls for the payment of such bonds and for maintenance, operation and repairs of the project.
Pursuant to authority under the Act, Ferry District was operating prior to and on April 23, 1957, a ferry service across the Chesapeake Bay between Little Creek and Kiptopeake. Ferry District had a maintenance department consisting of about twelve men to care for ordinary and general upkeep of its properties, equipment and facilities. Kenneth Barber was supervisor of the maintenance crew and George Daniels, port captain, worked in conjunction with him in overseeing repairs to the dock facilities. According to Barber, maintenance of the slipways to the shore was a responsibility of his department, and when a cluster of piles became loosened or some replacements were needed due to decay, defendant was called in with its crane and crew and related equipment to assist in the work. When major repairs were necessary a larger contractor was engaged to perform the work, which was done without any assistance from Ferry District's employees.
Shortly before April 23, 1957, Captain Daniels called William N. Gresham, superintendent and dispatcher for defendant, and requested that he send a crane to Little Creek to do some work for Ferry District, which involved dredging, raising a sunken paint barge and some pile driving. Willis Powell, defendant's superintendent of cranes, went to the job site and made a survey of the work to be done in order to furnish proper equipment for the job. As a result crane No. 14, its operator, James E. Chappell, Jr., and its oiler, David B. Bjork, as well as pile driving equipment, were dispatched to Little Creek. The crew were not instructed by defendant what to do, but were told that they would receive instructions from Ferry District's employees. According to Gresham, defendant charged Ferry District approximately $18 per hour for the use of the crane and $25 a day for the use of pile driving equipment. Wages for the operator and the oiler were included in the charge for the use of the crane and they were paid by defendant.
Barber assigned plaintiff and four other Ferry District maintenance employees to fill in and replace defective piles in a cluster and work along with the 'rig'. Plaintiff, a carpenter first class, who had been in the employ of Ferry District since its creation, was selected because he knew the work and had assisted in it on prior occasions. Although the direct supervision of the job was under Barber and Daniels who did not remain at the job site, plaintiff did exercise some supervision of the work. Ferry District furnished the piles and other material for the repairs. Its employees 'topped' the piling to fit the follow block, which serves as a cap to protect the pile from the hammer blows, selected the piles to be used and designated where they were to be placed. They attached the hoisting cable of the crane to the pile, climbed the leads of the pile driving equipment in order to guide the pile and to connect and disconnect the follow block from the hammer when necessary and gave signals to the crane operator to manipulate the pile into place.
Ferry District has never owned a crane and alone has never attempted to drive piles. Equipment has always been secured elsewhere for pile driving. The actual operation of the crane in question was under control of Chappell and Bjork. Defendant selected the equipment, hired and trained the personnel to operate it. As Captain Daniels expressed it, the crane crew and the maintenance employees of Ferry District were 'working together' on the job.
Plaintiff's right hand was severely injured during the operation of the equipment when the follow block became unhooked from the hammer, fell and struck him.
It was stipulated that Ferry District, its employees, E. T. Gresham Company, Inc. and its employees had all accepted and were subjected to the provisions of the Workmen's Compensation Act on the date of the accident; that Williams was awarded and received compensation while he was totally disabled and later received a specific award for permanent disability of his hand, and that no appeal was taken from these awards made by the Industrial Commission.
The primary question is whether plaintiff's cause of action was barred by the provisions of the Workmen's Compensation Act.
Pertinent sections of Code 1950 relating to the Act follow:
Section 65-37. 'The rights and remedies herein granted to an employee when he and his employer have accepted the provisions of this Act respectively to pay and accept compensation on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents or next of kin, at common law or otherwise, on account of such injury, loss of service or death.'
Section 65-38. * * *' (Italics supplied.)
Section 65-26. 'When any person (in this section and §§ 65-28 and 65-29 referred to as 'owner') undertakes to perform or...
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