James v. Pearson

• Decision Date: 24 July 1911
• Parties: JAMES v. PEARSON.
• Court: Washington Supreme Court

116 P. 852

64 Wash. 263

JAMES v. PEARSON.

Supreme Court of Washington

July 24, 1911

Department 1. Appeal from Superior Court, King County; R. B. Albertson Judge.

Action by Walter James against Alexander Pearson. From a judgment for plaintiff, defendant appeals. Affirmed.

Arthur C. Dresbach, for appellant.

Owens &amp Finck and Reynolds, Ballinger & Hutson, for respondent.

MOUNT J.

The plaintiff brought this action to recover for personal injuries resulting to him by reason of the breaking of a defective rope, which was used on a derrick for the purpose of hoisting structural iron upon a building which was being constructed. Plaintiff recovered a judgment in the court below. The defendant appeals.

The principal defense interposed was that the plaintiff was employed by one Norman, who was an independent contractor and the defendant was therefore not liable for his negligence. It appears that the defendant was the general contractor for the construction of the building, and had authority to sublet certain portion of the work. He claimed that he sublet a contract to one H. Norman, to place certain structural iron in the building at the agreed price of $8 pre ton, and that he had no control over Mr. Norman, or over the men whom Mr. Norman employed to do the work. The plaintiff on the other hand, claimed that Norman was merely foreman, employed by the defendant upon the work, and that his pay was fixed by agreement at the difference between the cost of doing the work and $8 per ton; that the defendant furnished certain tools and appliances and paid the men for the work, and had general control over the men and the work.

Mr. Norman testified in reference to these facts as follows: 'A. Well, in securing the work from Mr. Pearson, he told me he had a man previous; that he paid him $6 a day, and he walked around with his good clothes on, and he had not done any work, and he employed a man under him, who managed the men. And he would not give me that kind of a lay-out; and I was to work on a percentage basis, or a kind of a contract; and I would guarantee that the work would not cost Mr. Pearson only a certain price per ton. Q. Was the work done under Mr. Pearson's supervision? A. Mr. Pearson was not on the job. Q. I mean the superintendent under him. A. I stated Mr. Pearson's superintendent instructed me where to start at and where to quit and when to quit, and if he wanted any extra work done he would instruct me where to do it and when to do it; but, so far as directing the men, he would always come to me. * * * Q. Whose derrick was used in the lifting of this iron? A. That must have been Mr. Pearson's derrick. It was on the building floor up there. Q. It was there when you went there? A. Yes, sir. * * * Q. Whose rope was it that broke? * * * State whose rope it was. A. It must have been Mr. Pearson's rope. It was in the warehouse there, and I and one man went down and got the rope and placed it on the derrick. Q. Got it out of Mr. Pearson's warehouse? A. Yes, sir; out of his toolhouse. * * * Q. You have several men---- A. I employed the men, and I told them who would pay them and where they would get their money. Q. What did you tell them about that? A. I told them that Mr. Pearson would pay it. Q. Was that in your agreement that Mr. Pearson was to pay the men? A. Yes, sir. * * * Q. Suppose that there was a loss would have occurred there, who would have borne that loss? A. The general contractor, Mr. Pearson himself. * * * If I exceeded that contract price--that is, if I exceeded the amount in labor of the 187, or whatever tonnage it was, at $8 a ton, if I did not go ahead and furnish the funds to complete this work--I would simply quit, and Mr. Pearson would finish, and I would receive nothing for what time I would have labored; that would be the outcome of the whole thing.' Mr. Pearson denied this, and testified in substance that Mr. Norman was an independent contractor.

The appellant argues that the court should have dismissed the action upon defendant's motion upon the opening statement of counsel, for the reason that such statement conceded that Mr. Norman was an independent contractor and liable for the damages; and also upon defendant's motion made at the close of the evidence, for the reason that the proof showed that Mr. Norman was an independent contractor. We think the court did not err in denying these motions. While counsel for plaintiff stated in opening his case that the defendant 'made an agreement with Mr Norman that, instead of paying him $6 a day as he...