D.E. Hewitt Lumber Co. v. Mills

• Decision Date: 20 January 1922
• Parties: D. E. HEWITT LUMBER CO. ET AL. v. MILLS.
• Court: Kentucky Court of Appeals

236 S.W. 949

193 Ky. 443

D. E. HEWITT LUMBER CO. ET AL. v. MILLS.

Court of Appeals of Kentucky.

January 20, 1922

Appeal from Circuit Court, Martin County.

Action by Florence Mills against the D. E. Hewitt Lumber Company and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

W. R McCoy, of Inez, for appellants.

J. B Clark, of Inez, and Kirk & Kirk, of Paintsville, for appellee.

CLARKE J.

This is an appeal by the defendants, the D. E. Hewitt Lumber Company and Joe Pack, from a judgment for $500 damages in favor of plaintiff, now appellee, for personal injuries sustained by her while riding upon a log train which was being operated by Pack on a narrow-gauge railroad between the lumber company's sawmill and a large tract of timber land owned by it, a distance of about 15 miles.

The defendants answered separately, and the first question for decision is whether or not, as claimed by the lumber company its codefendant, Joe Pack, was an independent contractor, and alone liable, or whether as claimed by the plaintiff, the relationship of master and servant existed between the lumber company and Pack, and both are liable for any negligence in the operation of the train.

Only flat cars for hauling logs to the mill were operated upon the railroad, and neither passengers nor freight were regularly carried thereon, but frequently, as on this occasion, and simply as a matter of accommodation, persons were permitted to ride and articles were carried on the flat cars to and from points along the railroad.

Both the sawmill and the timber land were formerly owned by the Wolf Creek Lumber Company, and while so owned the narrow-gauge railroad connecting same was constructed by Pack under contract with the Wolf Creek Lumber Company, and, as is conclusively shown by the proof, he was at the time of the accident operating the railroad under that contract, but the D. E. Hewitt Lumber Company had acquired the title of the Wolf Creek Lumber Company to the sawmill and the timber land and had succeeded to its rights and obligations under this contract with Pack.

That contract provides in susbtance that Pack shall cut, haul, and deliver to the mill all timber above 14 inches in diameter and in such lengths as desired from the tract of timber; that he shall build the railroad, do all the work, and bear all the expense necessary thereto and in delivering the logs; that he shall commence at once and diligently prosecute to completion the construction of the railroad and thereafter deliver as much as 35,000 feet of lumber per day to the sawmill; that the company is to furnish the right of way for the railroad in accordance with its contract with the landowners along the route, together with sufficient beech timber for tram ties and the rails it had leased from the N. & W. Ry. Co.; but that Pack shall pay the rental on the rails, and at the expiration of the lease return them to the N. & W. Ry. Co. For his services the company agrees to pay him stipulated prices per 1,000 feet for different kinds of logs delivered by him to its mill under the contract. There is a provision for arbitration in case of dispute and another for the advancement by the company to Pack of money to meet his monthly pay rolls. It is further provided that Pack assumes all responsibility for cutting the logs, delivering same, and operating the railroad, and that in case he "fails to deliver the amount specified in this contract that the lumber company can put men in and prosecute the contract as cheaply as possible and charge the amount paid for having the work done" to him.

Counsel for the appellee contend that the last-quoted provision, together with the fact that the company furnished the right of way, rails, and ties for the construction of the railroad, gave it sufficient interest in the railroad and such control and supervision over its operation that Pack was but its servant, and not an independent contractor, in the operation of the railroad. But manifestly this is not true.

"Ordinarily where one employs another to execute a piece of work, and the one so employed has the right to select his own assistants or help, the employer having no control over the hands of the employee, and no right to direct the manner in which the work shall be done further than to require that it shall be done in compliance with the specifications under which it is contracted to be done, the one so contracted with is an 'independent contractor.' The relationship of 'master...