Beal v. Champion Fibre Co.

• Decision Date: 20 December 1910
• Citation: 69 S.E. 834,154 N.C. 147
• Parties: BEAL v. CHAMPION FIBRE CO. et al.
• Court: North Carolina Supreme Court

69 S.E. 834

154 N.C. 147

BEAL v. CHAMPION FIBRE CO. et al.

Supreme Court of North Carolina

December 20, 1910

Appeal from Superior Court, Buncombe County; Councill, Judge.

Action by Gattis G. Beal against the Champion Fibre Company and another. Judgment for plaintiff. Defendants appeal. Affirmed.

One who undertook to construct a building for defendant was not an independent contractor, but defendant was his master, liable for his negligence and that of his employees; the contract reserving to defendant the right to direct "the manner in which the work shall be carried out"; requiring defendant to furnish important portions of the material for constructing the appliances and facilities for carrying on the work; declaring all purchase and prices of materials and supplies subject to its approval; and reserving to it the right to select, control, and discharge the labor employed and fix the prices paid the same.

The evidence tended to show that on the 25th of February, 1907 plaintiff, an employé, was engaged with others in putting up a lot of buildings for defendant company at Canton, N. C the particular building in question being the third floor and roof of the Extract building, and while so engaged he received serious injuries by reason of the negligent orders given by one Sam Clayton, a foreman who had immediate charge of this particular work they were doing at the time. On the trial the jury rendered the following verdict: "(1) Was the plaintiff, at the time of the injuries complained of, in the employ of the defendant Champion Fibre Company? Answer Yes. (2) Was the plaintiff injured by the negligence of the defendant Champion Fibre Company, as alleged in the complaint? Answer: Yes. (3) Was the plaintiff guilty of contributory negligence? Answer: No. (4) Was the plaintiff damaged by the negligence of the defendant Champion Fibre Company, and, if so, in what amount? Answer: $1,000." Judgment on the verdict, and defendant excepted and appealed.

A. S. Barnard, for appellants.

James J. Britt and J. F. Ford, for appellee.

HOKE J.

The validity of this trial and judgment is challenged by defendant chiefly on three grounds: First. That Sam Clayton, whose negligent order is said to have caused the injury, was an employé of one Frank Gilreath, an independent contractor, and for that reason no responsibility for Clayton's acts were properly imputable to defendant. Second. For that said Sam Clayton was in no sense a vice principal of defendant company, but only an ordinary boss of a gang of hands, constituting him a fellow servant of plaintiff. Third. That on the facts in evidence there was no negligence shown either on the part of Clayton or any one else for whose conduct defendant company was responsible. But we are of opinion that neither position can be sustained.

As to the first position, in Cooley on Torts, marginal page 646, an independent contractor is defined as follows: "Where the contract is for something that may be done and is proper in its terms, and there has been no negligence in selecting a suitable person to contract with in respect to it, and no general control reserved either as respects the manner of doing the work or the agents to be employed in doing it, and the person for whom the work is to be done is interested only in the ultimate result of the work, and not in the several steps as it progresses, the latter is neither liable to third persons for the negligence of the contractor as his master, nor is he master of the person employed by the contractor so as to be responsible to third persons for his negligence." The author cites in support of this position Shearman and Redfield on Negligence, § 165, in which the term is thus referred to: "One who contracts to do a specific piece of work, furnishing his own assistants, and executing the work either entirely in accordance with his own ideas, or in accordance with a plan previously given to him by the person for whom the work is done, without being subject to the orders of the latter in respect to the details of the work, is clearly a contractor and not a servant." In a recent work on this special subject, Moll on Independent Contractors' and Employers' Liability, §§ 16, 17, 18, et seq., similar definitions from courts of recognized authority are given, thus: "An independent contractor has also been defined to be one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer except as to the result of his work. Lurton, J., in Powell v. Construction Co., 88 Tenn. 692 [13 S.W. 691, 17 Am. St. Rep. 925]." Again: "The test to be applied is whether the employé represents the employer as to the result of the work or is to be regarded the means. If the former, he is to be regarded as an independent contractor, but if the latter, merely an agent or servant. Parrott v. Railroad, 127 Iowa, 419 ." And "the test generally applied in answering the question, who are independent contractors, is: Independence of control in employing workmen, and in selecting the means of doing the work." The author (section 19) then quotes with approval from Judge Thompson's Commentaries on Negligence: "If the proprietor retains for himself or for his agent (e.g., architect and superintendent) a general control over the work, not only with reference to results, but also with reference to methods of procedure, then the contractor is not deemed the mere agent or servant of the proprietor, and the rule of respondeat superior operates to make the proprietor liable for his wrongful acts or those of his servants, whether the proprietor directly interfered with the work and authorized and commanded the doing of such acts, or not. It is not necessary in such a case, that the employer should actually guide and control the contractor. It is enough that the contract vests him with the right of guidance and control." The principle is very clearly expressed in a Pennsylvania case (Smith v. Simmons, 103 Pa. 32, 49 Am. Rep. 113): "Where one who contracts to perform a lawful service for another is independent of his employer in all that pertains to the execution of the work, and is subordinate only in effecting a result in accordance with the employer's design, he is an independent contractor, and in such case the contractor alone and not the employer is liable for damages caused by the contractor's negligence in the execution of the work." And a like ruling was made in Faren v. Sellars, 39 La. Ann. 1011, 3 So. 363, 4 Am. St. Rep. 256, on facts not dissimilar to these presented here. These definitions have been recognized as sound and upheld in numerous decisions of our own court (Thomas v. Lumber Co. [present term] 69 S.E. 275; Hunter v. R. R., 152 N.C. 682, 68 S.E. 237; Gay v. R. R., 148 N.C. 337, 62 S.E. 436; Young v. Lumber Co., 147 N.C. 26, 60 S.E. 654; Davis v. Summerfield, 133 N.C. 325, 45 S.E. 654, 63 L. R. A. 492; Craft v. Lumber Co., 132 N.C. 151, 43 S.E. 597; Waters v. Lumber Co., 115 N.C. 648, 20 S.E. 718), and their correct application to the facts presented are against defendant's first position, as above stated. It appears, in evidence, that defendant company, engaged in constructing, at Canton, N. C., an extensive plant, to include numerous buildings, for the manufacturing of pulp and tannic acid, on the 19th of March, 1906, entered into an agreement with Frank B. Gilreath, of the city of New York, to do the work contemplated. True, he is "hereinafter designated as contractor," and as a general proposition no doubt he was, but from a perusal of the contract entered into between the parties, and in view of the authority and control reserved therein to the company "Hereinafter designated as owner," it is manifest in reference to this particular work the position of independent contractor on the part of Gilreath cannot be maintained.

The contract in question, after the usual preliminary statements provides generally that the work shall be done as outlined on drawings prepared by George F. Hardy, mill architect, and called "drawing No. 8,613, general plan of mill buildings," "and that said work is to be done under the supervision of this architect and subject to his approval, and he is to be paid by the owner." Article 3 of the contract is as follows: "The architect will be represented at the work by a civil engineer, who is referred to in this contract as the engineer, and who will have the power which this agreement gives him subject to the approval of the architect. No alterations shall be made in the work except upon the written order of the architect or engineer. The contractor shall provide sufficient safe and proper facilities at all times for the inspection or laying out of the work by the architect or engineer and shall follow his directions regarding the manner in which the work shall be carried out." In article 14, it is stipulated: "Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect, or failure being certified to by the architect as sufficient ground for such action, the owner shall be at liberty, after seven (7) days' written notice to the...