D.B. Griffin Warehouse, Inc. v. Sanders

• Court: Arkansas Supreme Court
• Writing for the Court: Jesse B. Daggett
• Citation: D.B. Griffin Warehouse, Inc. v. Sanders, 336 Ark. 456, 986 S.W.2d 836 (Ark. 1999)
• Decision Date: 04 March 1999
• Docket Number: No. 97-01573,97-01573
• Parties: D.B. GRIFFIN WAREHOUSE, INC., Appellant, v. Margaret SANDERS, Appellee.

Page 836

986 S.W.2d 836

336 Ark. 456

D.B. GRIFFIN WAREHOUSE, INC., Appellant, v. Margaret SANDERS, Appellee.

No. 97-01573.

Supreme Court of Arkansas.

March 4, 1999.

Jesse B. Daggett, J. Shane Baker, Marianna, for appellant.

E. Dion Wilson, Helena, for appellee.

W.H. "DUB" ARNOLD, Chief Justice.

On October 23, 1991, as an employee of Delta Hardware and Lumber Company (hereinafter "Delta") of Elaine, Arkansas, Charles Sanders, deceased, along with two other Delta employees, was assigned the task of spray-painting the metal roof of a cotton warehouse located in West Helena, Arkansas, and owned and operated by Griffin, the appellant. In the process of undertaking this assignment, Charles Sanders fell to his death through a skylight located in the roof of the warehouse.

After Margaret Sanders, appellee and widow of Charles Sanders, had received workers' compensation benefits from Delta's workers' compensation carrier, she brought an action against the appellant for wrongful death, alleging that appellant had breached specified duties of ordinary care, that it failed to warn of certain hidden defects in the warehouse roof, that it failed to provide certain safety devices that would have prevented his fall, and that it failed to provide him with a safe working environment.

Prior to trial, in its responsive pleadings and in motions for summary judgment, appellant had denied appellee's allegations and any liability to appellee, alleging that because Sanders was an employee of an independent contractor (Delta) it had breached no duty to Sanders that proximately caused his fall, that it had no duty to provide safety devices, and that it had no duty to provide Sanders with a safe working environment. Appellant's motions for summary judgment were denied.

Over the course of the four days of trial, the testimony of thirteen witnesses and numerous documentary exhibits were admitted into evidence. At the conclusion of Sanders's proof, as well as at the close of all of the proof, appellant motioned the court for directed verdicts on the issues of Delta's status as an independent contractor and liability, negligence, and proximate cause on behalf of appellant. These motions, as well as proffered jury instructions regarding these issues, were denied by the trial court.

On May 23, 1997, the jury returned a verdict for appellee in the amount of $488,958.00. The verdict form was signed by only nine of the jury's twelve members. Pursuant to a timely motion for new trial filed by appellant, the court held a posttrial hearing, during which appellant contended that it was entitled to a new trial due to misconduct on the part of one of the nine jury members who had signed the verdict for appellee. Appellant's motion for a new trial was denied by the court.

The appellant now asserts three points on appeal:

1) Refusing to properly apply Arkansas's law on independent contractors to the evidence submitted below, the circuit court erred in denying appellant's motions for directed verdict, in its instructions to the jury, and in refusing to give appellant's proffered instructions:

A) The circuit court erred in denying appellant's motion for a directed verdict on the issue of Delta's status as an independent contractor;

B) The circuit court erred in denying appellant's motion for a directed verdict on the issues of liability, negligence, and proximate cause;

C) The circuit court erred in its instructions to the jury and in failing to give appellant's proffered instructions;

2) The circuit court erred in refusing to admit appellant's rebuttal testimony 3) The circuit court erred in denying appellant's motion for a new trial based on juror misconduct.

Appellant asserts that an application of the combined holdings of Dickens v. Farm Bureau Mut. Ins. Co., 315 Ark. 514, 868 S.W.2d 476 (1994) and Jackson v. Petit Jean Electric Co-op., 270 Ark. 506, 606 S.W.2d 66 (1980), to the evidence in this case reveals that, at the time of Charles Sanders's death, Sanders was, as a matter of law, an employee of an independent contractor (Delta) to whom the appellant, as the employer of the independent contractor, had breached no duty of care. This being the case, appellant asserts that the circuit court's refusal to direct a verdict in favor of appellant on the issues of Delta's status as an independent contractor and upon the issues of liability, negligence, and proximate cause at the close of all the proof constituted reversible error. Accordingly, appellant asserts that this case must be reversed and dismissed. Our jurisdiction of this case is pursuant to certification from the Arkansas Court of Appeals.

We agree with appellant that the trial court erred on the directed-verdict issue of Delta's status as an independent contractor; however, we cannot agree with appellant that the trial court erred in failing to direct a verdict on the issues of liability, negligence, and proximate cause. However, because the trial court erred in failing to direct a verdict on Delta's status as an independent contractor, this case must be reversed and remanded for a new trial on the additional issue of Griffin's liability to its independent contractor's employee, Mr. Sanders, as well. As a result of the case being reversed and remanded on these points, the remaining points asserted on appeal by the appellant are moot and will not be addressed.

I. Delta's status as an independent contractor.

The standard of review of the denial of a motion for a directed verdict is whether the jury's verdict is supported by substantial evidence; substantial evidence is defined as evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture; when determining the sufficiency of the evidence, the supreme court reviews the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. Union Pac. R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997); Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997).

In the Dickens case, supra, property owners sued their insurer after the insurer had recommended a home repair contractor, whom the property owners later alleged had negligently repaired their home. After judgment was entered for the property owners, the matter was appealed--the only issue on appeal being the propriety of the trial court's ruling that the contractor was, as a matter of law, the agent of the insurer and not an independent contractor. In this Court's holding in Dickens that the repairman was an independent contractor, we reasoned that the following factors be considered, citing § 220 of the Restatement (Second) of Agency:

(1) the extent of control which, by the agreement, the master may exercise over the details of the work;

(2) whether or not the one employed is engaged in a distinct occupation or business;

(3) the kind of occupation, with reference to whether in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(4) the skill required in the particular occupation;

(5) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(6) the length of time for which the person is employed;

(7) the method of payment, whether by the time or by the job;

(8) whether or not the work is a part of the regular business of the employer (9) whether or not the parties believe they are creating the relation of master and servant; and

(10) whether the principal is or is not in business.

Id. at 517, 868 S.W.2d 476. This Court reasoned that the "right of control" is the principal factor in determining whether the relationship is one of agency or independent contractor.

When the factors cited in Dickens are applied to the record in this case, it is clear that there was never any substantial evidence from which the trial court could have determined that the jury could find Delta to be an agent of appellant, and not an independent contractor. On the contrary, the evidence submitted to the jury leads to the conclusion that a finding of agency could have only been based on mere "suspicion or conjecture," Ouachita Wilderness Institute, Inc. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997), requiring a ruling on behalf of the trial court that Delta was, as a matter of law, an independent contractor.

At the trial of this matter, Gary Inman, appellant's warehouse manager at the time of Sanders's death, testified that the only business activity ever conducted at the warehouse was that of storing cotton, and that neither the warehouse nor any of its employees ever participated in the roofing business in any way. Inman testified that upon a decision being made to have the roof painted, three bids were collected from three different contractors. Delta, Sanders's employer, was selected to do the work.

Gary Carpenter, owner of Delta, testified that Delta's business activity regularly included carpentry work, roof repair, room additions, the construction of steel buildings, and "all phases [of] construction." Carpenter testified that prior to submitting Delta's bid to the appellant, he, unattended by any representative or employee of the appellant, visited the warehouse for the purpose of taking measurements and "walking all four sides of the building." Carpenter testified that upon Delta's bid being accepted by the appellant, Carpenter again revisited the warehouse, unattended by any Griffin representative, and walked over the warehouse roof, making his calculations. He explained that he understood Delta was to "supply the material, the labor, the management, and the clean-up thereafter to complete the job."

Carpenter further testified that appellant had paid an unitemized fee for the entire job. It played no role in deciding what materials Delta would use...