Sanders v. Georgia-Pacific Corp.

• Decision Date: 01 June 1976
• Docket Number: No. 13622,GEORGIA-PACIFIC,13622
• Parties: Allen M. SANDERS v.CORP., and Rupert Sturgill.
• Court: West Virginia Supreme Court

Page 218

225 S.E.2d 218

159 W.Va. 621

Allen M. SANDERS v. GEORGIA-PACIFIC CORP., and Rupert Sturgill.

No. 13622.

Supreme Court of Appeals of West Virginia.

June 1, 1976.

Syllabus by the Court

1. One who would defend against tort liability by contending that the injuries were inflicted by an independent contractor has the burden of establishing that he neither controlled nor had the right to control the work, and if there is a conflict in the evidence and there is sufficient evidence to support a finding of the jury, the determination of whether an independent contractor relationship existed is a question for jury determination.

2. The owner or occupier of premises owes to an invitee such as a non-employee workman or an independent contractor the duty of providing him with a reasonably safe place in which to work and has the further duty to exercise ordinary care for the safety of such persons.

3. Syllabus No. 2, Chenoweth v. Settle Engineers, 151 W.Va. 830, 156 S.E.2d 297 (1967), is here specifically disapproved and will not be applied even though the conditions of the place of work are constantly changing as the work progresses except in those rare and unusual instances where it can be shown that the one asserting the defense of independent contractor neither knew nor in the exercise of reasonable care, skill and diligence should have known of such changing conditions.

4. Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.

Marshall & St. Clair, James W. St. Clair, Huntington, for appellant.

Campbell, Woods, Bagley, Emerson, McNeer & Herndon, C. F. Bagley and R. H. Burns, Jr., Huntington, for appellee Georgia-Pacific Corp.

Smith & Rumora, W. Graham Smith, Jr., Williamson, for appellee Rupert Sturgill.

WILSON, Justice:

In this negligence action to recover damages for personal injuries, the plaintiff, Allen M. Sanders, appeals from an order of the Circuit Court of Mingo County setting aside a jury verdict in favor of the plaintiff against both defendants, Georgia-Pacific Corporation and Rupert Sturgill, in the total sum of $50,000.00.

In setting the verdict aside, the trial court ruled that it had erred in failing to grant Georgia-Pacific's motions for a directed verdict made both at the close of the plaintiff's evidence and at the close of all the evidence. It further ruled that such error was prejudicial to both defendants and accordingly awarded a new trial to both of them.

The trial court was apparently of the opinion that the evidence was sufficient to impose liability for negligence on the defendant Sturgill. At all stages during and after the trial, the trial court rejected all efforts by Sturgill to challenge the sufficiency of the evidence for that purpose. A new trial was awarded to Sturgill solely on the ground that he had been prejudiced by the court's error in failing to direct a verdict for Georgia-Pacific.

The trial court's ruling with reference to Georgia-Pacific is not clear. Apparently, the trial court was of the opinion that Sturgill was, as a matter of law, an independent contractor whose negligence could not be imputed to Georgia-Pacific and was further of the opinion that the plaintiff had failed to present evidence from which a jury could have found that Georgia-Pacific was otherwise negligent. On this appeal, we are required merely to determine whether, under the evidence, the trial court would have been justified in taking the case from the jury as to Georgia-Pacific's defenses of independent contractor and no primary negligence.

The sharp conflict in the evidence on behalf of the plaintiff and on behalf of Georgia-Pacific significantly affects our resolution of the controlling questions. The evidence must be interpreted in the light most favorable to the plaintiff with due regard for every reasonable inference therefrom. See Smith v. Rude Carrier Corp., 151 W.Va. 322, 334, 151 S.E.2d 738, 745 (1966). When so interpreted, the evidence justifies the following summary of material facts.

The plaintiff suffered a fracture of his back and was otherwise injured while engaged in loading logs for Georgia-Pacific.

For the purpose of this action, the plaintiff was not an employee of either Georgia-Pacific or Sturgill. He owned a truck which had been purchased with the help of Georgia-Pacific, had been modified in accordance with instructions given by Georgia-Pacific, and was used by him to haul logs for Georgia-Pacific. He was paid for this work by Georgia-Pacific on some basis not clearly defined in the record.

At the time of the accident, the plaintiff's truck was being loaded with logs by means of a crane whose cable was equipped with a pair of tongs similar to ordinary ice tongs. This work was being done on land owned and controlled by Georgia-Pacific; and with a crane owned and furnished by Georgia-Pacific and brought to the job site by Genrgia-Pacific. Georgia-Pacific was responsible for keeping the crane in operating condition and did in fact keep it in operating condition to the extent of replacing parts, paying for repairs, performing routine maintenance, and making periodic inspections.

The crane in question had been placed at the loading site by Sturgill and at the time of the accident was being operated by a regular employee of Sturgill.

Georgia-Pacific, through its employee, Kocher, and at least one other employee, supervised the entire Georgia-Pacific logging operation on a daily basis, was in charge of and oversaw all operations including the loading operations, and generally supervised trucking contractors such as the plaintiff.

It was a common practice for one such as the plaintiff to disengage the tongs from the logs after they had been loaded onto the truck and then, after the final log had been so loaded, to grasp the tongs for the purpose of being transported to the ground by the crane operator. This is exactly what the plaintiff was doing at the time of the accident. The crane operator had raised him to a point six inches to one foot above the last log when, for reasons not fully apparent from the record, the logs began to roll off the truck. Then, the crane operator jerked the tongs causing the plaintiff to lose his grasp and to fall into the midst of the tumbling logs thereby inflicting the injuries of which the plaintiff complained.

The crane had been placed so far below the level of plaintiff's truck that the operator of the crane did not have a clear view of the plaintiff's position and could not tell that the plaintiff was above the level of the rolling logs in a position of safety.

Georgia-Pacific not only generally disputes the above-outlined factual account, but specifically says that Sturgill was an independent contractor and that the negligence, if any, of Sturgill, either in the placement of the crane or in the operation of it by his employee, cannot be imputed to Georgia-Pacific.

In support of the contention that Sturgill was an independent contractor, the written contract between Sturgill and Georgia-Pacific, together with a written amendment and modification thereof, were introduced into evidence, and there was testimony from Sturgill that, apart from those documents, there was a separate agreement, presumably oral, with Georgia-Pacific which was just an extension of the written agreements under which he was loading and hauling logs for Georgia-Pacific.

The defense of 'independent contractor' is one which defendants have long favored as a means of denying liability for acts which are done by those whom they neither control nor have a right to control. However, over the years, the defense has proved to be a slender reed and one which the courts have found difficult to apply. ¹

This Court at an early time discussed the doctrine of the non-liability of one for the negligence of another who was an independent contractor and in Carrico v. West Virginia Cent. & P. R'y Co., 39 W.Va. 86, 92, 19 S.E. 571, 573 (1894), stated the rule and test of its applicability, as follows:

'The general rule may be stated to be that one, who has contracted with a fit and competent person exercising an independent employment to do work not in itself dangerous to others or unlawful, according to the contractor's own method, and without his being subject to control, except as to the results of his work, will not be answerable for the wrongs of such contractor, his subcontractor or servants committed in the prosecution of his work.

'Nice questions arise in the application of the rule. Who is an independent contractor? Or rather, is he an independent contractor, or only an agent or reprsentative of the employer in the particular case?'

In the intervening years, the general rule has remained intact, but its efficacy as a defense has been so frequently questioned as to lead the Court of...