Hall v. Patterson
| Decision Date | 21 December 1942 |
| Docket Number | 4-6916 |
| Citation | 166 S.W.2d 667,205 Ark. 10 |
| Parties | HALL v. PATTERSON |
| Court | Arkansas Supreme Court |
Appeal from Sharp Circuit Court, Northern District; John L. Bledsoe Judge; affirmed.
Affirmed.
Claude B. Brinton and Bon McCourtney, for appellant.
Cockrill Armistead & Rector, for appellee.
In his complaint against appellee and The Texas Company, appellant alleged that the defendants were engaged in the distribution of gasoline and oil products, owning a plant at Hardy in Sharp county, Arkansas, and that appellee, Patterson, was the agent and employee of the Texas Company and in control of said plant; that in August, 1939, Patterson, acting in his individual capacity and as agent for The Texas Company employed appellant to paint certain tanks and a warehouse; that while engaged in such work on August 18, 1939, he sustained serious personal injuries, the result of a fall due to the breaking of a defective rope used in connection with a block and tackle equipment, by means of which he elevated himself from the ground in order to paint the outside of the tanks; that the sole and proximate cause of his injury was the negligence of the defendants in failing to provide him a safe place to work and safe tools and equipment with which to work.
Appellee answered denying each allegation of the complaint, and stated that he was not the agent and employee of The Texas Company, and there was no relationship existing between him and The Texas Company at the time of the alleged accident, insofar as the work being done by appellant was concerned; that appellant was neither an employee of appellee nor of The Texas Company; that if appellant was injured it was the result of his own negligence or the result of a risk which he assumed. Appellee further alleged that he had contracted with the Norman Lumber Company of Hardy, Arkansas, to do certain work for him on the property in question; that the lumber company was an independent contractor, and it was his understanding that appellant contracted with the Norman Lumber Company to do the work he was engaged in at the time of the alleged accident; that he had nothing to do with the employment of appellant and was not responsible for the injuries complained of.
The Texas Company also filed an answer.
Appellant called appellee, Patterson, as his first witness, and, at the conclusion of his testimony, took a voluntary nonsuit against The Texas Company. The trial then proceeded with appellee as the sole defendant. At the conclusion of the evidence on behalf of appellant the court directed a verdict for Patterson, which resulted in this appeal.
In his motion for a new trial, in addition to the usual grounds, appellant assigned as error the action of the court (a) in directing a verdict for Patterson, and (b) in refusing to permit counsel for appellant to ask the jurors, when they were being interrogated as to their qualifications, whether they were employed by or had any connection with any liability insurance company.
Appellee Patterson, called on behalf of appellant, testified that he lived at Jonesboro and owned the warehouse and tanks at Hardy on which appellant was working when he fell. He contracted with Mr. Norman of the Norman Lumber Company at Hardy for the painting of these structures, his contract with Norman being in writing. He never at any time had any dealings with appellant in connection with the painting job. He did not direct appellant and was not there when the work was going on.
After he entered into a contract with Norman for the painting of the tanks and other property, it was Norman's duty to have the work done. Norman did not tell him who would do the painting or that he had talked with appellant about doing it.
Appellee further testified that Archie Gregory was his employee and was sent to Hardy to construct the bases for the tanks and do electrical work, but he was not in charge of the work of erecting the tanks. Gregory did not pay the men and did not, to his knowledge, give orders to the men.
Appellant, Hall, testified that he was 48 years of age, was reared at Hardy, had been a painter and paper hanger for 30 years, and had followed this occupation in many places and in different states. He heard that Mr. Norman was doing this job and went to see him to get the painting job if possible. Norman informed him that he was furnishing the paint, but had nothing to do with the painting. Patterson hired him on August 15, and he was injured on August 18, 1939. Patterson said Gregory was in charge of the work and he would take orders from Gregory. Patterson was there each day while he was working and so was Gregory. He was using a ladder when Gregory told him he could not do it that way, as the ladder was scraping the paint and he would have to use a "block and fall." Gregory brought the block and fall and ropes to him, and he started to use them.
He attached the apparatus and observed the condition of the ropes. He made tests of these ropes--tightened up on them and they did not break. He then took his seat and raised himself up, and the rope attached to the seat broke, causing his fall and resulting injuries. He had worked on "swinging stages" before, and in this instance had done the same things in getting the "swinging stage" ready and getting on it that he had always done.
On cross-examination appellant testified he attached the block and tackle equipment to the tank, tied to the seat the rope which broke, and tested the ropes as painters usually do to see if they were proper ropes and of sufficient strength to hold him up, and they appeared all right and safe to use. They sustained his weight when he tested them, and he was satisfied with the sufficiency of the ropes.
"
The undisputed evidence further shows that the block and tackle equipment used in this work belonged to O. W. King and was borrowed from King; that appellant knew where King lived and went with Gregory to show him the place.
There was other evidence tending to establish and refute the contention that the relationship of master and servant existed between appellee and appellant. To further set out or refer to the testimony on this point would unduly extend this opinion and we deem it unnecessary in view of the conclusion we have reached.
Counsel for appellant contend that he was under no obligation to examine and test the ropes and equipment and had the legal right to rely on the presumption that appellee had used ordinary care to furnish him reasonably safe equipment with which to perform his work; that he did not do so and having negligently failed to perform this duty, he is liable for the injuries appellant received due to the breaking of one of the ropes he was using.
While appellee contends that appellant was not his employee, he insists that even if it should be held that this was a question of fact for the determination of the jury,...
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