Summary
In Hipp, once the deliveryman poured the concrete into its forms and footings his responsibilities were finished. He did not help the purchaser's employees spread the concrete or in any other way work jointly with the other employees.
Summary of this case from Kilmer v. Ryder Integrated Logistics, Inc.Opinion
42476 Record No. 7367.
April 26, 1971
Present, All the Justices.
Workmen's Compensation — Delivery to Job Site.
Hipp was injured while working for another subcontractor on job site as result of act of employee of Sadler who was making delivery of concrete to job site. Since Sadler not required to spread or finish concrete, action against Sadler not barred by Workmen's Compensation Act.
Error to a judgment of the Court of Law and Chancery of the City of Norfolk. Hon. Edward L. Ryan, Jr., judge presiding.
Reversed and remanded.
Arnold H. Leon (L. David Lindauer; Bangel, Bangel Bangel, on brief), for plaintiff in error.
Ralph E. Lawrence (William, Worrell, Kelly Worthington, on brief), for defendant in error.
An employee of defendant Sadler Materials Corp. ("Sadler"), which had agreed to furnish and pour concrete at a job site, struck and injured plaintiff David R. Hipp while he was working for another subcontractor at the job site. Hipp brought this tort action against Sadler. The trial court entered summary judgment for Sadler, holding that the action was barred by the Workmen's Compensation Act.
Sadler's contract called for the delivery to the job site of concrete of specified strength to be poured into forms and footings where directed by the concrete finishing subcontractor. But Sadler was not required to spread or finish the concrete. Sadler's employee, who was driving a "ready-mix" truck, was performing Sadler's obligation under the contract when his truck struck and injured Hipp at the job site.
The trial court relied upon Bosher v. Jamerson, 207 Va. 539, 151 S.E.2d 375 (1966), wherein we held that the spreading of sand in accordance with plans and specifications, which called for a six-inch sand base beneath the floor of a building under construction, constituted part of the trade, occupation and business of the general contractor.
In Burroughs v. Walmont, 210 Va. 98, 168 S.E.2d 107 (1969), decided after the trial court's decision in this case, we distinguished between an act of construction (as in Bosher) and an act of delivery (as in Burroughs). In Burroughs we held that the plaintiff-deliveryman, who was injured while engaged in the delivery of sheetrock in specified quantities to specified rooms of homes under construction, was not engaged in the trade, business or occupation of the general contractor. Consequently, we held plaintiff Burroughs could bring an action against the general contractor for the injuries inflicted by its employee.
In this case, Sadler was required only to deliver concrete where directed, not to spread or finish the concrete. In performing Sadler's obligation, Sadler's employee was performing in our opinion the final act of delivery, not an act of construction constituting the trade, business or occupation of the general contractor. We therefore hold that the Workmen's Compensation Act does not bar this action.
Reversed and remanded.