Ellis & Lewis v. Warner

• Decision Date: 07 October 1929
• Docket Number: 124
• Citation: 20 S.W.2d 320,180 Ark. 53
• Parties: ELLIS & LEWIS v. WARNER
• Court: Arkansas Supreme Court

20 S.W.2d 320

180 Ark. 53

ELLIS & LEWIS v. WARNER

No. 124

Supreme Court of Arkansas

October 7, 1929

Appeal from Lonoke Circuit Court; W. J. Waggoner, Judge; reversed.

Judgment reversed, and cause remanded.

Chas A. Walls, for appellant.

Trimble Trimble & McCrary and Reed & Beard, for appellee.

OPINION

MCHANEY, J.

Ellis & Lewis, a partnership composed of A. C. Ellis and C. S. Lewis, appellants, were contractors engaged in the construction of a rock road from Lonoke, in Lonoke County, to Beebe, in White County. They employed about thirty persons with trucks for the purpose of hauling crushed rock or gravel from Lonoke to be distributed along the public highway as and where directed by appellants. These haulers furnished their own trucks, paid all expenses of their operation, worked as and when they desired, and were paid twenty cents per ton per mile haul. Among those so employed was one Jack Cooper, who, in September, 1928, was seventeen years of age. On September 27, 1928, while driving his empty truck south back to Lonoke for another load, and while driving through loose rock or gravel on said highway at a speed of about thirty miles per hour, said Cooper ran his truck against appellee, causing serious bodily injuries. This suit was brought against said Cooper and appellants to recover damages for said injuries, but before the trial appellee dismissed as to Cooper. The trial proceeded against appellants, resulting in a verdict and judgment against them for the sum of $ 2,000.

The first question we are called upon to decide is whether, under the facts, the court should have told the jury that Cooper was an independent contractor, as a matter of law, and therefore that appellants were not liable for his negligent acts.

"An independent contractor," says Judge Elliott, "may be defined as one who, in the course of an independent occupation, prosecutes and directs the work himself, using his own methods to accomplish it, and represents the will of the company only as to the result of his work." 3 Elliott on Railroads, 3d ed., § 1407, page 70. This definition was quoted with approval in St. L. I. M. & So. Ry. Co. v. Gillihan, 77 Ark. 551, 92 S.W. 793, and in J. W. Wheeler & Co. v. Fitzpatrick, 135 Ark. 117, 205 S.W. 302. Continuing the quotation from the above section, the learned author says: "Generally, when an independent contractor is employed to perform a work lawful in itself and not intrinsically dangerous, the company, if it is not negligent in selecting the contractor, is not liable for the wrongful acts or negligence of such contractor, and, in order that the company shall be liable in such a case, it must appear that it either exercised, or reserved the right to exercise, control over the work, or had the power to choose, direct and discharge the employees of the contractor. In general, it may be said that the liability of the company depends upon whether or not it has retained control and direction of the work."

In 14 R. C. L., page 75, it is said that: "Cartmen, truckmen and draymen are generally held to be independent contractors though the contrary view is sometimes taken of their employments where their employers exercise considerable control over them." A case cited to support this statement of the law is Burns v. Michigan Paint Co., 152 Mich. 613, 116 N.W. 182, 16 L. R. A. N. S. 826, where "a licensed expressman, who delivered goods for defendant for $ 15 a week, furnishing a...