Cook v. Wright

• Decision Date: 04 January 1937
• Docket Number: 32472
• Court: Mississippi Supreme Court
• Parties: COOK et al. v. WRIGHT

171 So. 686

177 Miss. 644

COOK et al. v. WRIGHT

No. 32472

Supreme Court of Mississippi

January 4, 1937

Division B

1. MASTER AND SERVANT.

"Where contractor's obligation is to produce certain net result by means and methods over which, so far as concerns details of management of means and of physical conduct of himself and employees, contractor has own control, contract is "contract for service" not "contract of service," and relation of master and servant does not exist.

2. MASTER AND SERVANT.

Master and servant relationship did not exist between employee of subcontractor and contractor who had sublet contract with State Highway Commission, so as to entitle employee to recover from contractor for injuries sustained through negligence of foreman, merely because contract contained provision that work should be done to complete satisfaction of Highway Department and under inspection at all times of its agent or representative.

3. MASTER AND SERVANT.

Master and servant relationship did not exist between employee of subcontractor and contractor who had sublet contract with State Highway Commission, so as to entitle employee to recover from contractor for injuries sustained through negligence of foreman, merely because contract between Highway Commission and contractor gave Highway Department right to discharge any workman or employee, and contract between contractor and subcontractor required that subcontractor should employ competent workmen.

4. MASTER AND SERVANT.

Master and servant relationship did not exist between employee of subcontractor and contractor who had sublet contract so as to entitle employee to recover from contractor for injuries sustained through negligence of foreman because contract between contractor and subcontractor required subcontractor to do work with trucks rather than with wagons.

5. MASTER AND SERVANT.

Master and servant relationship was not created between employee of subcontractor and contractor who had sublet contract with State Highway Commission so as to entitle employee to recover from contractor for injuries sustained through negligence of foreman, because pay rolls and expenses were paid by contractor who charged items to subcontractor and deducted them from amount due subcontractor for compensation under contract.

6. MASTER AND SERVANT.

Master and servant relationship was not created between employee of subcontractor and contractor who had sublet contract, so as to entitle employee to recover from contractor for injuries sustained through negligence of foreman, because contractor at request of subcontractor, who was forced to be absent discharged certain workmen.

7. MASTER AND SERVANT.

Owner or employer, to avoid responsibility of master, need not entirely absent himself from work, or entirely disassociate himself from active interest, or aid in performance, or from supervision of results so long as details of work, physical management of instrumentalities used, and physical conduct of those employed remain under sole control of contractor or of those placed in authority by him.

HON. A G. BOSBY, Judge.

APPEAL from the circuit court of Lauderdale county HON. A. G. BUSBY, Judge.

Action by Eddie Wright against W. G. Cook and others. From a judgment in favor of the plaintiff, the defendants appeal. Reversed as to named defendant, and affirmed as to defendants Broadfoot and Smith.

Affirmed in part, and in part reversed.

M. V. B. Miller, of Meridian, and P. M. Lee and O. B. Triplett, Jr., both of Forest, for appellants.

The cause should be reversed and rendered as to W. G. Cook. The relationship of employer and independent contractor existed between W. G. Cook and J. K. Broadfoot on the date of plaintiff's injury. The written contract between Cook and Broadfoot made of the latter an independent contractor.

Restatement, Agency, sec. 220; Bear Creek Mill Co. v. Fountain, 94 So. 230, 130 Miss. 436; Hutchinson Moore Lbr. Co. v. Pittman, 122 So. 191, 154 Miss. 1; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; McDonald v. Hall-Neely Lbr. Co., 165 Miss. 143, 147 So. 315; Kisner v. Jackson, 132 So. 90, 159 Miss. 424; Gulf Refining Co. v. Nations, 145 So. 327, 167 Miss. 315; The Texas Co. v. Pete Mills, 156 So. 866, 171 Miss. 231; The Texas Co. v. Jackson, 165 So. 546; Shell Petroleum Corp. v. Kinham, 163 So. 839; Burns v. Eno, 240 N.W. 209.

No change in the relationship by the mutual assent of Cook and Broadfoot was ever shown. The relationship of employer and independent contractor, like that of master and servant, arises out of contract, express or implied.

39 C. J. sec. 2, page 34, sec. 4, page 35, and sec. 15171526, pages 1316-1323; Restatement, Agency, sec. 22,0; Texas Co. v. Jackson, 165 So. 546; Louis Werner Sawmill Co. v. Northcutt, 134 So. 156, 161 Miss. 441.

The assent of both parties is necessary to give rise to either relationship.

39 C. J., sec. 2, page 34; Restatement, Agency, sec. 221.

Being a contractual relationship, the mutual assent of the parties thereto is equally essential to its modification or rescission.

39 C. J. 48, sec. 19; Schwartzreich v. Bauman-Basch Co., 231 N.Y. 196; 13 C. J. 591, sec. 606.

And, in the absence of mutual assent, no modification or change of the relationship can be brought about by the conduct of one of the parties, unknown to the other, though inconsistent with such relationship.

39 C. J. 42, sec. 15; Texas Co. v. Jackson, 165 So. 546.

Moreover, when an express, unambiguous, written contract creates the relationship, it continues until the con, tract is terminated by operation of law or by mutual consent.

Texas Co. v. Jackson, 165 So. 546.

It is obvious that Cook and Broadfoot entered into a contract whereunder Broadfoot had the sole right to hire, discharge, direct and control; that every test proved him to be ah independent contractor; and that, unless what Cook later did on one sole occasion was enough to change the relationship, Cook is not liable to the appellee.

It is error to give instructions that tend to mislead or confuse the jury, especially where the evidence is conflicting, or the case close.

64 C. J. 666, sec. 599; Russell v. Williams, 150 So. 528, 168 Miss. 181, 151 So. 372.

The instructions cannot be read into the others granted so as to make a consistent whole; they rail to furnish the jury a correct guide. Such error was harmful and reversible.

Marx v. Berry, 168 So. 61, 176 Miss. 1.

Where instructions are asked by either party to a suit, which correctly state the law on the issues presented and the evidence, ir generally is the duty of the court to give them, and it is improper and error to refuse them if the propositions embraced therein ate not substantially and correctly covered by the general charge or other instructions given, even though correct instructions on other subjects within the issues are given.

Gulfport and Mississippi Coast Traction Co. v. Raymond, 128 So. 327, 157 Miss. 439; 64 C. J. 890, sec. 701.

The motion of appellant, Cook, should have been sustained because the verdict was contrary to the overwhelming weight of the evidence.

Justice v. State, 154 So. 265, 170 Miss. 96; Newton v. Homochitto Lbr. Co., 138 So. 564, 162 Miss. 20; M. & O. Ry. Co. v. Johnson, 141 So. 581, 165 Miss. 397; Y. & M. V. Ry. v. Pittman, 153 So. 382, 169 Miss. 667; Fore v. I. C. Ry., 160 So. 903; C. & G. Ry. v. Buford, 116 So. 817, 150 Miss. 832; Smith v. G. M. & N. Ry., 129 So. 599, 158 Miss. 188.

If the appellee proved anything he proved that he was doing a regular "dare-devil" act, running a truck as fast as it would go without steering gear or brake, and it "dancing all over the road" as he drove mile after mile preceding the accident.

Hercules Powder Co. v. Tyrone, 124 So. 74, 155 Miss. 75; Miss. Utilities Co. v. Smith, 145 So. 896, 166 Miss. 105; Goodyear Yellow Pine Co. v. Mitchell, 108 Miss. 152, 149 So. 792; Gow Co., Inc., v. Hunter, 168 So. 264.

To say that appellee was not negligent as a matter of law is to say that a servant can never be held negligent where the master can be found negligent. Furthermore, the rule never applies where the danger is so obvious and great that no prudent person would assume it.

C. J., page 835, sec. 1047.

Williamson, Riddell & Clayton, of Meridian, for appellee.

We think it is clear that the relationship of independent contractor did not exist between W. G. Cook and James K. Broadfoot on the date of injury to appellee or in connection therewith and in this respect we call the court's attention to the fact that the foreman, Mr. Smith, was made foreman and placed in charge of the truck that caused the wreck by W. G. Cook and that this same foreman was fired and hired again the same day by W. G. Cook months after he had been hired by the said James K. Broadfoot, and considerable time after the alleged and so-called independent written contract was entered into between the said W. G. Cook and James K. Broadfoot.

We also call the court's attention to the fact that the only contract that the State Highway Department had with anybody concerning the highway maintenance work that the appellee was engaged in at the time of his injury, was the contract that the State Highway Department had with W. G. Cook, a written contract introduced in evidence; that under the very terms of the written contract between the highway department and Cook the highway department reserved therein the right to inspect supervise and control all the maintenance work contemplated under the terms of said contract, including the work that the appellee was engaged in when he sustained the injury involved in this suit, including the right to direct each and every detail of the work and how it should be performed and even the right to...