Embler v. Gloucester Lumber Co.

• Decision Date: 16 December 1914
• Docket Number: 530.
• Citation: 83 S.E. 740,167 N.C. 457
• Parties: EMBLER ET AL. v. GLOUCESTER LUMBER CO.
• Court: North Carolina Supreme Court

83 S.E. 740

167 N.C. 457

EMBLER ET AL. v. GLOUCESTER LUMBER CO.

No. 530.

Supreme Court of North Carolina

December 16, 1914

Appeal from Superior Court, Henderson County; Webb, Judge.

Two actions by J. P. Embler, administrator, and by B. F. Staton administrator, against the Gloucester Lumber Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

The question presented on a motion to direct a verdict is whether, admitting the truth of all the evidence given in favor of the party against whom the action is contemplated together with such inferences as may reasonably be drawn from it, there is enough evidence reasonably to sustain a verdict in accordance therewith, and, where the evidence is conflicting, all facts and inferences in conflict with the evidence against which the action is to be taken must be eliminated from consideration, leaving that evidence only which is favorable to the party against whom the motion is leveled.

The instructions excepted to as to the measure of damages were as follows:

So it is, in both of these cases, the Miller Case and the Embler Case, first you find how long they would have lived had they not gotten killed, what would be their gross earnings, and then what would be their net earnings, and you would subtract what it would take to support them, what they would have spent during that time that you say they would have lived if they had not been killed, subtract that from their gross earnings, and that would be your verdict and the present value would be your answer to the fourth and fifth issues relative to these two young men. * * *

When you answer the fourth and fifth issues, if you should reach the fourth and fifth issues, the pecuniary worth would be ascertained by deducting the cost of his, or their, own living and expenditures from the gross income, based upon their life expectancy. As a basis on which to enable you to make their estimate, it is competent to show, and for you to consider, the age of the deceased, their prospects in life their habits, their character, their industry and skill, the means they had for making money, the business in which they were employed; the end of it all being to enable the jury to fix upon the net income what might be reasonably expected if death had not ensued, and thus arrive at the pecuniary worth of the deceased to their families. You do not undertake to give the equivalent of human life. You allow nothing for suffering. You do not attempt to punish the defendant, but you seek to give a fair, reasonable pecuniary worth of the deceased to their families under the rule which the court has laid down.

The actions were brought for the purpose of recovering damages for the alleged negligent killing of plaintiffs' intestates, which was caused by the falling of the wall of a dry kiln of the defendant. It was admitted in the answer, and also upon the trial, that the intestates were killed by the falling of the wall. The defendant denied the allegations of negligence, pleaded assumption of risks, and alleged that the intestates were employés of Jesse V. Allen, an independent contractor. The following is the verdict of the jury:

"(1) Were the plaintiffs' intestates, Fred Embler and Carlton Miller, in the employ of J. V. Allen, an independent contractor, as alleged by the defendant's answer? Answer: No.

(2) Were the plaintiffs' intestates, Fred Embler and Carlton Miller, in the employ of the defendant, Gloucester Lumber Company, at the time alleged in the complaint? Answer: Yes.

(3) Were the plaintiffs' intestates, Fred Embler and Carlton Miller, killed by the negligence of the defendant, Gloucester Lumber Company, as alleged in the complaint? Answer: Yes.

(4) What damage, if any, is the plaintiff J. P. Embler, administrator of Fred Embler, entitled to recover of the defendant, Gloucester Lumber Company? Answer: $3,645.83.

(5) What damage, if any, is the plaintiff B. F. Staton, administrator of Carlton Miller, entitled to recover of the defendant, Gloucester Lumber Company? Answer: $3,253.43."

Judgment for the plaintiffs was entered thereon, and defendant appealed to this court.

Martin, Rollins & Wright, of Asheville, for appellant.

Staton & Rector and Smith & Shipman, all of Hendersonville, for appellees.

WALKER, J. (after stating the facts as above).

The real and essential question in this case is whether Jesse V. Allen, at the time of the accident which caused the death of plaintiffs' intestates, was an independent contractor and chargeable with sole responsibility therefor.

The defendant requested that several instructions be given to the jury, which in substance were equivalent to a motion to nonsuit or a peremptory direction to find for the defendant. We will so consider them, without reproducing them severally here. If there was evidence that Jesse V. Allen was not an independent contractor, the instructions should not have been given, and therefore were properly refused by the court.

The evidence of both parties tended to show that Jesse V. Allen entered into a verbal contract with the defendant, through J. S. Silverstein, its president and general manager, to lay the brick in the walls of the dry kiln, at either $3.25 or $2.75 per thousand; the evidence as to the amount being conflicting. Allen was to look after the employment of hands to work on the job, the wages paid them to be deducted from the contract price for laying the brick. The defendant was to furnish all of the material for the construction of the walls. It was also shown by the evidence of both parties that the defendant turned over to Allen a blueprint containing plans and specifications for the construction of the walls of the kiln. These plans and specifications provided, among other things, for a concrete foundation for the walls of said kiln, the same to be 24 inches wide and 18 inches high, but did not provide for pilasters to be put on the walls.

Plaintiffs' witness J. V. Allen testified that the base was to be of concrete, under the ground, but was built of brick under the orders of Silverstein. He told Silverstein that he noticed on the blueprint that it was to be a concrete base, and that it ought to go in under the building, and he (Silverstein) said, "put in brick." He also testified: That Silverstein ordered him to put up some pilasters on the sides of the walls. That Silverstein, or defendant's superintendent, were around looking after the work a number of times. Mr. Bowman, who was employed by the defendant and had charge of its office, was around two or three times every day. That in paying the hands they signed Mr. Silverstein's pay roll and the witness gave some orders. That the blueprint showed the bricks were to be laid on a cement foundation, but Mr. Silverstein changed the foundation and decided to put in a brick foundation instead, and ordered Allen to do so. That Silverstein was present a number of times and gave orders in regard to the construction of the walls.

Herbert Allen, a witness for plaintiffs, testified:

"When they went there to work, Mr. Silverstein stated to them to go ahead and put in a brick foundation instead of concrete. Witness' brother told Mr. Silverstein that the concrete base ought to go in. Mr. Silverstein said the brick would do, and Jesse said: 'You are the doctor. We will put it in that way if you say so.' That while he was at work on this building, he saw Mr. Bowman there every day, once or twice a day. Mr. Bowman was giving orders about one thing and another. He laid out some work there; placed off the rods that were elevated for the track to go through the dry kiln, that he followed his directions. He saw Mr. Silverstein there several times during the progress of the work. He came to see how it was getting along and gave orders. That he got his pay by signing Mr. Silverstein's pay roll, and was paid off in checks of the Gloucester Lumber Company. That the other laborers got their pay in the same manner."

Sibley Allen, a witness for the plaintiffs, testified:

"I heard a conversation between Mr. Silverstein and Mr. Bowman and my brother. He would come around and discuss what to do and tell him to go ahead and put it in like he said."

As the intestates were killed by the falling of the walls of the kiln, which was then being constructed for the defendant, it would be liable in damages to the plaintiffs, provided there was negligence which proximately caused the wall to fall. If there is anything, then, that relieves the defendant of this liability, it is, under the ordinary rule of law, incumbent upon it to so allege and prove, as this is entirely defensive matter. It follows that, as to the defense that the work was being done by an independent contractor, the burden was upon the defendant to show that fact. 26 Cyc. p. 1573--3; Midgette v. Manufacturing Co., 150 N.C. 333, 64 S.E. 5; Sutton v. Lyon, 156 N.C. 3, 72 S.E. 4; Mitchell v. Whitlock, 121 N.C. 166, 28 S.E. 292; Cook v. Guirkin, 119 N.C. 13, 25 S.E. 715.

This court has held that, in the trial of causes in which the defendant seeks to avoid liability upon the ground that the party in charge of the work is an independent contractor, it is proper to submit the question raised by the contention of the defendant in this respect, to the jury in a separate issue or question. Young v. Lumber Co., 147 N.C. 35 60 S.E. 654. As this issue is raised by the defendant in its answers, the burden is upon it to sustain its...