Harger v. Harger

• Decision Date: 14 June 1920
• Docket Number: 42
• Parties: HARGER v. HARGER
• Court: Arkansas Supreme Court

222 S.W. 736

144 Ark. 375

HARGER v. HARGER

No. 42

Supreme Court of Arkansas

June 14, 1920

Appeal from Franklin Circuit Court, Ozark District; James Cochran Judge; reversed as to Western Coal & Mining Company, affirmed as to Wallace Harger.

Judgment reversed, and cause dismissed as to Western Coal & Mining Company, judgment affirmed as to appellant Wallace Harger.

James B. McDonough, for appellants.

1. The court erred in not directing a verdict for the Western Coal & Mining Company. The evidence failed to show the relation of master and servant between it and plaintiff. The company had no right to select the employee, or remove or discharge him and no right to direct what work he should do nor the way and manner it should be done, the relation of master and servant did not exist between them and the Western Coal & Mining Company was not liable. 20 A. & E. Enc. L., p. 12, and cases cited; 26 Cyc. 965-6; Labatt on Master and Servant §§ 2, 18, 19-27. The relation is one of contract. 20 A. & E. Enc. L., p. 13.

Under the lease Wallace Harger was an independent contractor as a matter of law. 53 Ark. 503; 105 Id. 477; 54 Id. 424; 77 Id. 551; 118 Id. 561; 111 Id. 247; Ib. 91. The evidence is positive that Herbert Harger was not in the employ of the employ of the appellant mining company.

2. The fellow-servant doctrine has not been destroyed as to individuals operating coal mines. Wallace Harger is an individual and not a corporation, and he alone operated the mine at the time of the accident as an independent contractor. He employed appellee, Herbert Harger, and paid his wages. The mining company had no dominion or control over Herbert. Act No. 69, Acts of 1907, did not make the mining company liable. See p. 163 of the act. The court erred in ruling that the word "company" used in that act referred to an individual and that the statute was valid and that the statute or act destroyed the fellow-servant doctrine as applied to an individual engaged in mining coal. 95 Ark. 560; 87 Id. 587; 94 Id. 27; 89 Id. 522. The act is invalid in so far as it applies to individuals. 92 Id. 502; 184 P. 567; 121 N.E. 215. A mine is not limited to a mere subterranean excavation or workings. 95 P. 53; 14 L. R. A. (N. S.) 1043. "Mine" includes a coal mine. 106 P. 452. See, also, 178 P. 57; 238 U.S. 56; L. R. A. 1915 E. 953; 89 Ark. 522; 222 U.S. 251. There exists no power under the law to make an arbitrary, unjust and unreasonable classification as here. 127 U.S. 205; 170 Id. 283; 6 L. R. A. 308; 175 U.S. 348; 49 Ark. 325; 183 U.S. 79; 165 Id. 150; 32 N.E. 624; 83 Am. St. 116; 48 L. R. A. 265. The statute as applied to Wallace Harger in the operation of a coal mine as an individual is invalid and that the fellow-servant law as it existed at common law is ni full force as to Wallace Harger, and the court should have given the requests for instructions by Wallace Harger.

3. It was error to permit counsel for plaintiff to read to the jury in his opening statement the answer of the mining company. 104 Ark. 1, 542; 154 P. 159; 86 S.W. 65; 154 Id. 1070.

4. It was error to refuse to permit counsel to withdraw the separate answer of the mining company. 64 Ark. 253; 70 Id. 170.

5. It was error to permit counsel for plaintiff to state to the jury what was done after the accident and the statements made by Sam Young. 105 Ark. 247; 111 Id. 337; 115 Id. 515; 125 Id. 186.

6. It was error to permit the introduction of the evidence of Jackson and Shipley. 116 Ark. 125.

7. The court erred in giving plaintiff's instructions and refusing those asked by defendants. 87 Ark. 243; 82 Id. 511; 55 Id. 510; 58 Id. 157; 87 Id. 576; 135 Id. 330. It was error to refuse No. 10 asked by defendants. 57 Ark. 503; 108 Id. 377; 116 Id. 56; 105 Id. 526; 102 Id. 640; 90 Id. 387.

8. It was error to refuse instruction No. 13. Under the statutes of Arkansas the foreman or superintendent or person in control is not liable unless the injury is due to his personal negligence. Kirby's Digest, §§ 5350-2; 5337 to 5357.

9. It was error to give instruction No. 2. 88 Ark. 454. Also error to give No. 3, defining negligence; it is abstract and misleading. 78 Ark. 87. There was reversible error in the other intsructions. See cases supra, and a case exactly in point, 174 P. 1139. A peremptory instruction should have been given for the mining company. Under the provisions of the lease the lessees are independent contractors and the lessor was not liable for any injury resulting from any negligence of the lessees in connection with the operation of the mine. 77 Ark. 551; 55 Id. 510; 3 Elliott on Railroads, § 1063, p. 1586; 21 Okla. 266; 1 Thompson on Negl., p. 631; 34 Okla. 424; 6 Ga.App. 147; 68 Ill.App. 219; 95 N.Y.S. 833; 33 Wash. 591; 14 R. C. L. 67-71; 65 Id. 455; 76 Me. 100; 80 Cal. (Smith v. Belshaw); 17 L. R. A. (N. S.) 370; 45 Id. 930; 43 Am. Rep. 456. If the contract is in writing and unambiguous, its construction is a question for the court and not the jury. 36 Okla. 358; 8 L. R. A. (N. S.) 896; 145 Cal. 96; 14 R. C. L., p. 78, § 16; 28 Ark. 550; 103 Id. 341. In view of these authorities a peremptory instruction should have been given.

Pryor & Miles, for appellant.

Evans & Evans, for appellee.

The verdict is sustained by the evidence and there is no error in the instructions. 136 Ark. 467; Ark. Land Co. v. Fitzhugh, 143 Ark. 122; 1 McMullen (S. C.) 385; 243 U.S. 188; 49 So. Rep. 395; 160 Ala. 644. In view of the testimony a directed verdict for defendant was properly refused, and the judgment is right on the whole case. See 135 Ark. 117, a case on all-fours with this.

OPINION

MCCULLOCH, C. J.

Appellee, Herbert Harger, instituted this action in the circuit court of Franklin County against appellants Wallace Harger and the Western Coal & Mining Company, to recover compensation for injuries sustained while he was working in a coal mine as an employee of appellants.

It is alleged in the complaint that appellee was an employee of both of the appellants and certain acts of negligence are set forth in the complaint as having been committed by other employees of appellants and that the personal injuries received by appellee resulted from said acts of negligence. In the answer filed by appellants the Western Coal & Mining Company denied that appellee was its employee or that it was operating the mine at the time of appellee's injury. The answer of each of the appellants also contained a denial with respect to the alleged acts of negligence and pleaded contributory negligence on the part of appellee and the assumption of risk on his part. The trial of the issues resulted in a verdict in favor of appellee against both of the appellants for the recovery of the sum of $ 2,187.50.

Appellee's injuries were received on April 21, 1919, while he was working in a coal mine near Denning. The mine was owned and formerly operated by the Western Coal & Mining Company, a corporation, but at the time of appellee's injuries it was being operated by appellant Wallace Harger under a written contract between him and the Western Coal & Mining Company. The character of this contract will be shown later. Appellee was employed as the operator of an electric motor used in hauling a train of coal cars from what is called the "parting" to the foot of the shaft and then hauling the empties back from the shaft to the "parting," the distance between those two points being about 2,500 feet. The cars loaded with coal were made up into a train at the "parting" and appellee would connect the motor car to the train and haul it to the foot of the shaft for the coal to be hoisted to the surface and then the empty cars would be made up into a train and hauled back to the "parting." This work was, of course, all under ground, and the track between the two points was uneven--uphill and down. The coal cars in the train were coupled together by a crude appliance called a gooseneck, and on the occasion when appellee was injured the rear car became disconnected after the train left the "parting" en route to the foot of the shaft. This was caused by the coupling or gooseneck being too straight, and the rear car loaded with coal was allowed to become disconnected from the train. The train on this occasion was composed of seventeen cars, and appellee, without knowledge that the rear car had become disconnected, hauled the remainder of the cars to the foot of the shaft for the coal to be hoisted to the surface. The train arrived at the foot of the shaft just before noon, and one-half of the cars were hoisted before the dinner hour and the other half after appellee had returned from his meal. The trainload of empties was made up and turned over to appellee, and he proceeded on his journey hauling the train back to the "parting," and when he had proceeded about 1,500 feet his train encountered the coal car on the track and collided with it. Appellee sustained serious personal injuries in the collision.

Five separate acts of negligence on the part of servants of appellants are alleged in the complaint as causing or contributing to appellee's injuries: First, that there was negligence in permitting the gooseneck or coupling attached to the rear car to become and remain straightened out so that it would not hold its connection in the train second, that Sam Young, the pit boss and mine foreman, was guilty of negligence in failing to notify appellee that one of the cars had been disconnected and was standing on the track, it being alleged that Young saw the car standing on the track and failed to notify appellee when he started on the return trip with the train of empties; third, that the brake on the motor had gotten out of repair so that the train could not be stopped by means of the brake when danger was discovered; fourth, that...