Arkansas State Licensing Board For General Contractors v. Lane

• Decision Date: 20 December 1948
• Docket Number: 4-8669
• Citation: 215 S.W.2d 707,214 Ark. 312
• Parties: Arkansas State Licensing Board for General Contractors v. Lane
• Court: Arkansas Supreme Court

215 S.W.2d 707

214 Ark. 312

Arkansas State Licensing Board for General Contractors v. Lane

No. 4-8669

Supreme Court of Arkansas

December 20, 1948

Appeal from Sebastian Chancery Court, Ft. Smith District; C. M Wofford, Chancellor.

Affirmed.

W J. Smith and Hardin, Barton & Shaw, for appellant.

Daily & Woods, for appellee.

OPINION

Holt J.

April 21, 1948, appellant filed complaint in which it alleged that appellee, C. A. Lane, is a nonresident and "is now employed by Jack Corgan of Dallas, Texas, to supervise the construction of an outdoor drive-in theater located about five miles southeast of the City of Fort Smith in Sebastian county, Arkansas, on State Highway No. 22; that the cost of the construction project supervised by the defendant exceeds $ 10,000.

"That the defendant is not licensed by the Arkansas State Licensing Board for General Contractors to engage in the business of general contracting in the State of Arkansas and by reason thereof is operating in violation of the Arkansas State Licensing Law for General Contractors (Act 124 of 1939 as amended by Act 217 of 1945) which provides that one who undertakes to construct or have constructed under his direction or who superintends the construction of any structure or any improvement costing $ 10,000 or more shall be deemed to have engaged in the business of general contracting in the State of Arkansas and shall prior to engaging in such business procure from the Arkansas State Licensing Board for General Contractors a permit or license to do so.

"That the defendant is not employed by, working under the supervision of, nor representing an architect or engineer licensed or registered and authorized to practice and engage in either of such professions in the State of Arkansas."

The prayer was for injunctive relief, restraining appellee, Lane, from performing the work in question.

Appellee answered with a general denial and alleged "that his sole and only employment is with Jack Corgan; that this employment is full time employment for a fixed and constant salary of $ 112.50 per week and has continued without interruption since June, 1947; that his duties in this employment require him to devote his full time and energies to the business and enterprises of his employer wherever located; that his employer, Jack Corgan, is a member of a business partnership composed of J. H. Wisdom and Jack Corgan, doing business under the firm name of '22 Drive-In Theater'; that this defendant's present duties and tasks under said employment above described, consist of acting as engineering supervisor on the job of constructing an open-air, drive-in theater in Sebastian county, Arkansas, which construction job is being undertaken upon a lease-hold of land belonging to J. H. Wisdom and Jack Corgan, partners, doing business as '22 Drive-In Theater' and that said construction job is being conducted, supervised, actively superintended, controlled and regulated by one of said partners, J. H. Wisdom.

"That said partnership is the sole owner of a long-term lease-hold on the premises on which said theater is being constructed, and said partnership is the sole owner of the theater building and all other buildings, structures and improvements located upon and being erected upon said premises."

From an order denying the relief prayed and dismissing appellant's complaint is this appeal.

Appellant says: "The only question presented to the Court in this appeal is whether the appellee was a contractor and was engaged in the business of contracting within the meaning of the Arkansas State Licensing Law for General Contractors, Act 124 of 1939, as amended by Act 217 of 1945."

Section 1 of Act 124 provides: "That for the purposes of this Act a 'General Contractor' is defined to be any person, firm, partnership, co-partnership, association, corporation, or other organization, or any combination thereof, who for a fixed price, commission, fee or wage attempts to or submits a bid or bids to construct, or undertakes to construct, or assume charge of the construction, erection, alteration, repair, or have constructed, erected, altered or repaired, under his, their or its direction, any building, highway, sewer, grading, or any improvement or structure when the cost of the undertaking is Ten Thousand Dollars ($ 10,000) or more, and one who shall engage in the construction or superintending the construction of any structure or any undertaking or improvements, as above mentioned, in the State of Arkansas, costing Ten Thousand Dollars ($ 10,000) or more, shall be deemed to have engaged in the business of general contracting in the State of Arkansas, provided that this definition shall not include architects or engineers, whose only financial interest in the projects shall be the architectural or engineering fees for preparing plans and specifications, surveys and supervision."

The facts appear not to be in dispute and are, in effect, as brought out by appellant in his cross-examination of Lane and summarized, as follows: "I am an engineer by training and experience and have been since 1921. I am in full-time employment of Jack Corgan and have been since June or July of last year. He pays me $ 112.50 per week. I devote full time to Jack Corgan's interests. I undertake no independent employment. I am on call for him at all times. I have engaged in the performance of services for Mr. Corgan on various building projects in Oklahoma and Texas and the theater job near Fort Smith. This is the only job I have had anything to do with in...