J. W. Wheeler & Company v. Fitzpatrick

• Decision Date: 01 July 1918
• Docket Number: 82
• Citation: 205 S.W. 302,135 Ark. 117
• Parties: J. W. WHEELER & COMPANY v. FITZPATRICK
• Court: Arkansas Supreme Court

205 S.W. 302

135 Ark. 117

J. W. WHEELER & COMPANY v. FITZPATRICK

No. 82

Supreme Court of Arkansas

July 1, 1918

Appeal from Cross Circuit Court, First Division; W. J. Driver Judge; affirmed.

Judgment affirmed.

Hughes & Hughes, for appellants.

1. The undisputed testimony is that Lane was an independent contractor. Appellee was Lane's employee and appellants were not liable for Lane's negligence or that of his employees. 53 Ark. 503; 54 Id. 209; 54 Id 424; 55 Id. 510; 77 Id. 551; 81 Id. 195; 111 Id. 486; 118 Id. 561; 60 S.E. 654; 58 N.H. 52; 30 A. 346; 62 S.E. 436; 1 K. B. 851; 124 P. 844; 146 N.W. 241; 1 Sweeney (N. Y.) 545; 65 L. R. A 445-467 M. 469 Q; 17 L. R. A. (N. S.) 375.

2. The court erred in its instructions. Cases supra. Also in refusing requests asked by appellants. 14 R. C. L., § 3; 178 Mass. 1.

3. The verdict is excessive and grossly so. The extent of the injuries was grossly exaggerated.

S. W. Dugan and Chas. T. Coleman, for appellee.

1. Lane was not an independent contractor but an agent or servant of the appellants. The testimony amply shows this.

2. There is no error in the instructions given or refused. 109 F. 732; 154 N.C. 147; 124 P. 38; 81 Kan. 765; 76 Mich. 139; 95 Iowa 497; 38 Mont. 341; 23 Tex. Civ. App. 12; 84 Kan. 797; 116 S.W. 320; 1 Thompson on Negl., § 629; 7 Id., § 659; 8 Id., § 659; 124 P. 38; 86 Kan. 774; 64 W.Va. 278; 95 Iowa 497.

3. The verdict is not excessive considering the pain and suffering, his diminished earning capacity, expectancy of life, etc.

OPINION

WOOD, J.

Appellant is a partnership, engaged in the manufacture of hardwood lumber.

Appellee brought this action against the appellant and also against George Lane for damages for personal injuries. He alleged that he was in the employ of the appellant and engaged in the work of rafting logs in the St. Francis River; that Lane was the agent of the appellant and that appellee at the time of his injury was under the supervision and direction of appellant's agent, Lane.

The complaint sets forth the acts of negligence which it is alleged caused the injury.

The appellant answered and denied these alleged acts of negligence, and denied that the appellee was in its employ at the time of his injury. It denied that Lane was its agent at any time for any purpose. It admitted that it was the owner of the logs which were being moved at the time the appellee was injured, and alleged that Lane had contracted with it as an independent contractor to raft logs, for whose acts it was in no wise responsible. Appellant set up the defense of contributory negligence and assumed risk on the part of the appellee. There was a verdict in favor of the appellee against the appellant, and also against Lane, in the sum of $ 11,285. From a judgment in favor of the appellee for that sum appellant brings this appeal.

The only issues presented here are whether or not Lane was an independent contractor and whether or not the verdict was excessive. It is only necessary, therefore, to state the facts bearing on these issues.

The appellee testified that he was hired by Lane to raft timber. Lane was working for Wheeler, who was the foreman.

Another witness testified that he was working at the log raft in which appellee was hurt. He was working for Lane and Lane was working for Wheeler as he understood. Lane was in charge of the work and discharged witness from employment.

Another witness testified that he was working at another camp near by where appellee was hurt and shortly afterwards saw the broken cable. Lane told witness that they did not get good stuff up on that job and they sent worn out stuff up there for them to use. Witness had worked for Lane. About one week before he had inquired at the office of Wheeler & Co. and Wheeler told him to go to Lane and he would hire him. Witness went down there and Lane told witness that he would take him if it was all right with Wheeler, then Lane hired witness and Wheeler paid him. He sent the money to pay witness by Mr. Lane. Lane went down to Madison after the pay and carried witness' time and got the money. Wheeler never gave witness any money, but he held out witness' pay one time. Witness may have owed Wheeler a little at the time.

Another witness testified that he was at Lane's camp shortly after the accident and Lane showed him the cable that broke. It was an old rotten cable. Lane said it was one they had sent him from the farm that had been used on a stump puller, that Wheeler had sent him. Witness testified that Wheeler came to his place one morning and requested witness to go and help Lane raft timber. Witness told Wheeler he did not want to interfere with Lane's work unless satisfactory with Lane. Wheeler replied that it did not matter a damn whether it was satisfactory with Lane or not, that it was his timber and that he wanted to get it out, that the water was falling.

Another witness testified that in the spring of 1915 he was working on the river for Mr. Wheeler. He worked on the same job that Lane worked on. The river was falling and he helped Lane raft some of the timber that was left there. Mr. Wheeler got him to go up there. Wheeler employed him and paid him for his work and witness did not ask Lane anything about going to work on the job. Witness was paid for his work by the thousand.

Another witness testified to the same effect. The above is substantially the testimony on behalf of the appellee on the issue as to whether or not Lane was an independent contractor.

On behalf of the appellant, C. L. Wheeler testified, that he was one of the partners and had the management of the mill and the outside business. About September 1, 1915, he received a letter from Lane in regard to work. He answered the letter on the 10th making Lane a proposition and he received from him the following letter:

"Will drop you a few lines in answer to yours of the 29th. Will say that I can do the rafting if we can agree on a deal, though I am not able to fit up to do the work by contract, without you would help me. I would have to have a team of some kind to put the logs in the water with, and a house boat, tools, in fact everything most. If you wouldn't want to do that, I would take the job on a salary if that would suit you any better. Would like to do your work if we can agree on a deal at all. You let me hear soon as you can just the best you can do, either way. So I can figure on it. I have several offers to raft but would be out of work soon as the river got down. I would like to have some work all the year if you can fix me up, so will close hoping to hear from you soon."

Wheeler answered the above letter as follows:

"Your letter received and will say that I will give you $ 1.00 per M. for rafting the oak, and 75c for elm, ash, cypress and gum. The oak is to have two binders and be out of good elm, pecan or oak. The elm and cypress can have only one binder when rafted by itself. May not have enough floaters to carry all of the oak and will have to use float boats. Will pay $ 1.00 for loading this, same as if rafted. There should be about three million feet and if this suits you, come down and commence building your houseboat. We will furnish you the lumber and tools and take a mortgage on the boat. The binders that you use are to be bored.

"I think that you can make some money out of this job as it will last two or three years, and you should have a boat so you could board your men right on the job. There is a log team and wagon here that we can buy. If this suits you come at once and we will get busy, as water is coming up."

The lumber and tools in the letter referred to lumber and tools for the house boat. Lane accepted appellant's proposition and in a few days came down and went to work and continued to work for about two years under that contract and was operating under it when appellee was hurt. Witness never made any other contract with Lane. Lane bought a house boat. Appellant sent him money on his rafting contract as the work progressed at so much per thousand feet. Lane paid his own men and bought his own supplies. Appellant would sometimes take supplies to him as it went up after the logs. Appellant loaned Lane a pull boat. Lane supplied the tools for it and kept it in repair. Witness stopped once when the boat was out of repair to see what was the matter with it, but did not undertake to control, supervise, or direct Lane on the job of rafting. Lane ran the job himself. Lane hired the men and discharged them and paid them for their work.

Witness was asked if on one occasion he did not go up there and tell Lane the work was getting along too slow and that witness wanted him to put on another crew. Witness replied that he might have done so.

Wheeler further testified that it did not furnish Lane cable after he took the pull boat. Appellant paid Lane $ 1 per thousand oak and 75 cents on soft wood as he rafted it. Witness did not know the appellee until after he was hurt and did not know that he was at work on the job. Witness stated that he employed others to assist Lane in putting the logs in the river. But this was done with Lane's consent in order to get the logs in the water before it went down. Witness stated that the letters referred to constituted a written contract with Lane. He had no other contract with him. Lane accepted witness' proposition, but his acceptance was not in writing. Under the contract Lane was to raft about 3,000,000 feet of logs. It was to be done during the rafting season. Witness testified that nearly all of this kind of work was done by the thousand, and the contract that he had with Lane was the same kind that he made with all of his men for this kind of work. Witness testified that it was Lane's practice to notify appellant's office about...