Bear Creek Mill Co. v. Fountain

Citation94 So. 230,130 Miss. 436
Decision Date27 November 1922
Docket Number22800
CourtUnited States State Supreme Court of Mississippi
PartiesBEAR CREEK MILL CO. v. FOUNTAIN

1. MASTER AND SERVANT. Plaintiff must prove relation; evidence held not to prove relation.

Where a plaintiff files suit against a corporation or a person for personal injuries, alleging that the plaintiff was employed by the defendant, and the general issue is filed and also a special plea that the plaintiff was the servant of another and independent contractor, the plaintiff must prove the allegation of his declaration by a preponderance of the evidence, and in such case, if he shows that he was employed by a third person, he must show such third person was an employee of the defendant with authority to employ servants for the defendant. Held, the evidence in this case did not prove the allegation that the relation of master and servant existed.

2. MASTER AND SERVANT. Safe tool rule inapplicable to simple tools; burden of proof on plaintiff to show defective material.

The rule that a master must exercise reasonable care in furnishing the servant with safe tools and appliances does not apply to simple tools in common use, and with which the master and servant are equally familiar, and the condition of which may be easily seen. If the master manufactures the simple tool, he must use reasonable care in selecting suitable materials and reasonably skillful persons to do the work. The burden of proof is on the plaintiff to prove the materials used were not suitable, and that the persons employed were not skillful.

HON. J D. FATHEREE, Judge.

APPEAL from circuit court of Greene county, HON. J. D. FATHEREE Judge.

Suit by Joe Fountain, by next friend, Lelia Fountain, against the Bear Creek Mill Company. From a judgment for plaintiff defendant appeals. Reversed and dismissed.

Judgment reversed, and case dismissed.

Tally & Mayson, for appellant.

It will be observed that the second count in the declaration is based upon the alleged failure of the master to furnish a reasonably safe place and reasonably safe tools and appliances, but it does not state or charge in specific terms that any defective tool was furnished this plaintiff, nor does it charge that if the tool was defective that any complaint had ever been made to the master by any one, of the alleged defective conditions and inasmuch as the tool complained of was a chisel, which by all the authorities is classified and denominated a simple tool, any defect appearing thereon would have been apparent to the employee using the same, and the employee and not the master should have been the first to discover such defect and it not being alleged that it was in a defective condition when furnished by the master, it would be presumed that if defective at all, it became defective later and the master would have been entitled to some notice thereof. Besides, it clearly appears from the plaintiff's own proof, that plaintiff was not using the chisel and had finished his work, to-wit: Greasing the machinery and returned to where his employer, Murdock McLeod was engaged in tightening a screw with the chisel and while, no doubt, standing too close watching this performance, a small particle of the edge of this chisel broke off and flew to one side and hit plaintiff in the eye. We contend that under the authority of the case of Mississippi Central Railroad v. Bennett, decided by this court and reported in Volume 111, page 163, and the case of Ten Mile Lumber Company v. Garner, decided by this court, reported in Volume 117, page 814, Mississippi Report, that no cause of action was stated in the declaration and surely none established by the proof; therefore the court erred in not permitting the defendant to withdraw its pleas and file its demurrer to said declaration as the defendant was not only entitled to do this but taking the record as a whole plaintiff was entitled to have the demurrer sustained to said declaration, which would have ended the controversy at that stage of the game.

J. W. Backstrom, for appellant.

I confidently believe that this case will be reversed for the errors pointed out by my associates, but, I believe further that this case should be reversed and dismissed upon the theory of the independent contractor and further that the alleged injury was an accident, and which will be discussed in the order named.

Murdock McLeod was an independent contractor and if so, the appellant is not liable under any phase of this case. I understand the test to be, that: "An independent contractor is one who undertakes to do a piece of work according to his own method and without being subject to the control of his employer, except as to the result of his work. The test to be applied is, whether the employee represents his employer as to the means of his work, or the result thereof. If it is the result of the work, he is to be regarded as an independent contractor." If this is the true test, and we submit that it is, Murdock McLeod was an independent contractor.

The supreme court of Washington in the case of Zibell v. Eclipse, 33 Wash. 591, 74 P. 680, said: "One who enters into an oral contract with the owner of a shingle mill where it was agreed that he would take charge of said mill, employ and pay all laborers, and make all necessary repairs to the machinery and manufacture shingles out of timber which was to be furnished by the owner of the mill for a stipulated sum of so much per thousand for all shingles manufactured, was an independent contractor.

The supreme court of North Carolina in the case of Gay v. Roanoke Lumber Co., 62 S.E. 436, says:

A firm contracting to cut and deliver logs agreeing to load a certain quantity per day cutting the timber in a proper and workman-like manner, and to pay for any delays or damage incurred by their failure to perform the contract for a specified sum per thousand feet for merchantable logs so cut, hauled and delivered, the owner agreeing to furnish a locomotive and all the railroad iron and logging cars necessary to do the work, is an independent contractor."

The case of Helton v. Tall Timber Lbr. Co., 86 So. 729, is a Louisiana case, but is authority for our contention in the case at bar. In the Helton case, the work consisted of felling trees and sawing them into logs. Sometimes only two men were at work and at other times as many as fifteen worked, all independent of each other. They were paid at so much per thousand feet of lumber content of the logs. Their agreements were not for any fixed time, nor for any given quantity of work, and they were at liberty to quit at any time and get pay for the work done. The contractor furnished the saws and axes and kept them in order. He exercised no control over the men whatever, except that he would designate to each the section from which to cut timber and would see that the stumps were left level with the ground according to the specifications of the contract. The court said in that case, that: "An employee so working, is his own master, he was at liberty to do the work when and as he pleased. He was not even being paid wages, but only for what he chose to accomplish. A workman who in the manner of doing his work is under nobody's direction or control but his own, cannot be classed as an employee, but is an independent contractor." (See authorities cited.)

In the case at bar, Murdock McLeod had a shingle mill contract, had entire supervision of said shingle mill and the plaintiff was an employee of the said Murdock McLeod, an independent contractor. The only evidence in this record that conflicts with the theory of the independent contractor, is the testimony of the plaintiff where he testified that the appellant took out insurance. This was denied by J. H. Bearry, the bookkeeper and assistant manager of the Bear Creek Mill Company. Murdock McLeod testified that if there was any insurance taken out he had no knowledge of it, and the court will bear in mind that Joe Fountain was not even carried on the pay roll of the Bear Creek Mill Company.

The case of Finkbine Lumber Co. v. Cunningham, 57 So. 916, 101 Miss. 292, is not in conflict with our theory in this case. In the above case, the evidence showed that the lumber company collected premiums on accident insurance. This money was paid to the company, and by them applied to the premiums for accident insurance, and the company required that this insurance be kept on all employees working for Guy, who claimed to be an independent contractor. The facts in the Cunningham case are different from the facts in this case, and is not authority for appellee.

We submit that Murdock McLeod was an independent contractor, and if so, this case should be reversed and dismissed.

N. B. Miller and E. C. Fishel, for appellee.

As to Murdock McLeod being an independent contractor. We understand the simple test to be, who has the general control over the work? Who has the right to direct what shall be done and how to do it? And if the person employed reserves this power to himself, his relation to his employer is independent and he is a contractor, but if it is reserved to the employer or his agents, the relation is that of master and servant. Moffett v. Koch, 31 So. 40.

We respectfully submit therefore that the relation of independent contractor does not meet the simple test of who has the general control over the work, and who has the right to direct what shall be done and how to do it. Faren v Sellers, a Louisiana case, reported in 3 So. 363, was a case where a contractor took a contract to demolish a world's fair building in New Orleans, which contract contained the following clause: "The work of demolition is to be carried out according to the directions of the supervising architect, whose decisions on all points I...

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