Arkansas Land & Lumber Company v. Secrist

• Decision Date: 24 May 1915
• Docket Number: 11
• Citation: 177 S.W. 37,118 Ark. 561
• Parties: ARKANSAS LAND & LUMBER COMPANY v. SECRIST
• Court: Arkansas Supreme Court

177 S.W. 37

ARKANSAS LAND & LUMBER COMPANY v. SECRIST

118 Ark. 561

No. 11

Supreme Court of Arkansas

May 24, 1915

Appeal from Hot Spring Circuit Court; W. H. Evans, Judge; reversed.

STATEMENT BY THE COURT.

Appellee alleged in his complaint that on the 10th of January, 1914 he was engaged as a laborer in helping to construct extensive mill sheds for the appellant company and that in the construction of these sheds the appellant company had negligently and carelessly caused the carpenters constructing them to place the joists on which the roof rested without any bracing of any kind whatever to support the same, the only support for said joists being nails at the ends thereof, and that the appellant company knew that said manner of supporting the joists without bracing and with only nails at the ends thereof was insufficient and dangerous to employees working on top of the shed. That appellee had nothing to do with the construction of said sheds, being employed in conveying lumber and other material from one part of the sheds to other parts thereof for the use of those actually carrying on the work of construction, and that he did not know of the defective, dangerous and negligent manner in which said construction work was being done; and that while he was engaged in helping to remove and distribute a large pile of lumber negligently placed on top of the shed by appellant's servants in such quantity that the shed negligently constructed as aforesaid would not support collapsed by reason of the joists giving away, and appellee was precipitated to the ground, and parts of the lumber fell upon him, inflicting serious injuries.

Appellee recovered judgment for a very substantial sum, which is not claimed to be excessive. Without setting out the proof in detail showing the circumstances under which appellee sustained the injury sued for, it may be said that the proof is sufficient to support the finding of the jury that appellee's injury was due to the manner in which the joists had been constructed in conjunction with the negligent placing on the top of the shed of a pile of lumber containing a thousand or twelve hundred feet.

But the principal defense in this case is that appellee was not the servant of appellant at the time of his injury, but was the servant of one D. G. Allen, who was engaged in the construction of the sheds as an independent contractor. The proof shows, without dispute, that Allen was a contractor engaged in the construction of the various kinds of buildings, and had been operating as a contractor for several years, and that appellee, together with the other servants engaged in the construction of the shed in question, had all been employed by Allen, or by a Mr. Pryor, who was his foreman, and that appellee and all other servants employed on this job were paid their wages by Allen. Allen trod a contract in writing under which he was operating at the time of appellee's injury, which consisted in a proposition made by him to construct the shed and the acceptance of his offer by the manager of the appellant company. This writing was as follows:

"D G. Allen, contractor and builder. Estimates furnished on application. Telephone No. 206, Malvern, Ark., June 4, 1913. Mr. G. E. Mattison, City. Dear Sir: I will build your shed for $ 6.40 per thousand feet, you to furnish all material, in a convenient place to building site and all piers ready for posts to be set. Will build your tram under same conditions for $ 5.40 per thousand feet. Yours truly, (Signed) D. G Allen.

"Accepted 8-1-1913. Ark. L. & L. Co., G. E. Mat-tison, Mgr."

Allen testified that the appellant company had nothing to do with the work except to see that the shed was constructed in accordance with the plans, and that the appellant company had nothing to do with employing or discharging the labor, and that it had no authority to give, and d did not give, any orders or directions to any of the laborers in regard to the manner of performing their work, but that any suggestions or directions concerning the work made by appellants were given either to him or to his foreman, and were given for the purpose of conforming the work to the plans. He testified that the lumber company furnished the plans and specifications to go by, and that certain changes were made by its superintendent in the plans, but such changes were indicated on the blueprint. That on one occasion the superintendent made some changes in the material to be used but no directions were ever given by any representative of the appellant company to the men about their work, but that he and his foreman at all times had sole authority and supervision over the appellee and all other laborers. It is shown, however, that appellant's general manager and superintendent were both about the work once or twice a day, and sometimes oftener, and Allen's foreman and one of the laborers both testified on cross-examination that it was their duty to do as they were told by appel-lant's superintendent, and that they were subject to his orders in the performance of their duties. But a consideration of all the evidence given by these witnesses make it plain that they only intended to say that the superintendent had the right to prescribe plans for the building, and that it was their duty to execute these plans.

Much importance is attached by appellee to the statement of Pryor as to his recognition of the authority of appellant's superintendent to direct the construction of the work; but in explanation of this statement he said that Mr. Mattison (the superintendent) did not have any more authority to direct him in that work titan the owner of a house that he might be building would have in coming in and suggesting what to do about the house in connection with the plans of it, and that neither Mr. Mattison nor Mr. Rowland, appellant's mill foreman, had any authority, nor had they undertaken to exercise any authority, to direct the details of the construction work further than to be on the job and to see whether or not it was done in accordance with the contract. There was proof to the effect that on one occasion Pryor and a carpenter named Hendershot discussed the safety of the plans, which called for only one stringer when they thought two would be safer. Hendershot says that before this work was done, Pryor consulted Mattison, and while he did not know what conversation took place between them, he did know that only one stringer was used. No attempt was made, however, to show by either Matti-son or Pryor that Mattison had given any directions in this particular. It was shown that on one occasion appellants' superintendent went to where the work was going on and ordered certain tram posts cut off; but it was further shown that this was done because the appellant company, which was putting in the foundation, had put the foundation to a certain height and the posts had to conform to that, and as they had been put in too high they had to be cut off to conform to the foundation. It was also shown that at another time Mr. Mattison gave some directions about a change in the size of material used; but this direction was given to Mr. Agen, and it was not shown that any directions at any time were given by any representative of the appellant company except to Allen or his foreman.

Judgment reversed and cause dismissed.

Wynne & Harrison, for appellant.

Appellee was in the employ of an independent contractor and the court should so have instructed the jury and directed them to return a verdict for the appellant. The question whether or not Allen was an independent contractor was one of law addressed to the judgment of the court. 19 Am. & Eng. Ann. Cases, 1 and notes; 76 S.W. 987; 114 S.W. 538; 104 S.W. 495; 53 S.E. 733; 101 P. 681; 38 Col. 440; 77 Ark. 551; 3 Elliott on Railroads, par. 1063; 92 P. 360; 52 So. 476; 147 Ill.App. 575; 151 Ill.App. 144; 131 S. W, 917; 162 Ala. 396; 45 Cal. 96; 117 Ky. 655; 2 N. Y. L. 337; 19 Ind.App. 565; Sherman & Redfield on Negligence, § 165; Cooley on Torts, 549; 2 Thompson on Negligence, 899; 46 L. R. A. 367; 95 P. 398; 62 S.E. 436; 104 S.W. 495; 102 N.Y.S. 783; 40 So. 1007.

John C. Ross, for appellee.

1. The fact that a person is in the general employment and pay of one person does not of itself make that person his master. 57 Ark. 615; 105 Ark. 482,

2. The supreme test is the right of control over the work of the employee. L. R. 6 Q. B. Div. 532; L. R. 2 C. C. 37; 57 Vt. 252; Sherman & Redfield on Negligence, § 73; 1 Labatt, Master & Servant, § 18; Id. p. 56; Id. § § 64, 52; 103 Mass. 194; 118 Mass. 116; 212 U.S. 215; 126 N.Y.S. 538; 83 Vt. 44; 1 Labatt, Master & Servant, p. 173.

3. The right of an employer of a contractor to control the details of the contractor's work, determines the employers responsibility, and not the actual exercise of control. If the employer retains such right of control, whether he exercises it or not, he is liable as a master for all the consequences of negligence resulting from such work, and if he exercises such right, his responsibility is clear. Moll, Independent Contractors & Employer's Liability, § 19; Id., § 20; 137 Mass. 123; 105 Ark. 477, 482; 1 White, Personal Injuries, § § 276, 277; 82 F. 177; 17 L. R. A. (N. S.) 370; 111 Pa. 343; 43 Ill.App. 105; 71 Mo. 303; 15 Wall. 649; 39 La.Ann. 1011; 45 Ill. 455; 52 Minn. 474; 106 La. 371; 173 S.W. 184.

4. Where there is any conflict in the evidence as to who has the right to control and who does control the party committing the negligence complained of, the question of whether the contractor is independent or a mere servant is for the jury. Moll, Independent...