Louis Werner Sawmill Co. v. Northcutt

• Decision Date: 12 May 1931
• Docket Number: 29451
• Citation: 161 Miss. 441,134 So. 156
• Court: Mississippi Supreme Court
• Parties: LOUIS WERNER SAWMILL CO. v. NORTHCUTT et al

134 So. 156

161 Miss. 441

LOUIS WERNER SAWMILL CO. v. NORTHCUTT et al

No. 29451

Supreme Court of Mississippi

May 12, 1931

Division B

Suggestion Of Error Overruled October 12, 1931.

Appeal from chancery court of Tishomingo county, HON. JAS. A FINLEY, Chancellor.

Action by Mrs. Effie Northcutt, for herself and on behalf of her minor children, against the Louis Werner Sawmill Company and others. From a decree for complainant against defendant named, defendant named appeals. Reversed and rendered.

Reversed, and judgment here for appellant.

W. C. Sweat, of Corinth, and T. A. Clark, of Iuka, for appellant.

The relation of master and servant whatever term may be used to describe it, exists, ordinarily it is said, whenever one person stands in such a relation to another that he may control the work of the latter and direct the manner in which it shall be done. The essential elements are that the master shall have control and direction, not only of the employment to which the contracts relates, but all of its details, and shall have the right to employ at will, and for proper cause to discharge, those who serve him. If these elements are wanting, the relation does not exist.

18 R. C. L., p. 490; 39 C. J., p. 35.

In the relation of master and servant, arising out of contract, the assent of both parties is essential. Hence the relationship does not arise between employees and one who has made advances to, or guarantees the accounts of, the business in which they are employed, or even one who has agreed with the owner to pay the salaries of employees.

39 C. J., p. 34.

An owner who leases business to workers, and agrees to pay salaries of employees of lessees, does not thereby become an employer.

39 C. J., p. 34; Moffett v. Masontown Glass Co., 39 Pa. 581.

If the workmen do not stand in such relation to the person sought to be charged as to make it his duty to control them, they are not his servants, and he is in no sense responsible for their acts under the doctrine of respondeat superior.

39 C. J., p. 1269.

An independent contractor is one who, in rendering service, exercises an independent employment or occupation and represents his employer only as to the results of his work and not as to the means whereby it is done.

39 C. J., p. 1315, sec. 1517.

If the employer is merely subject to the control or direction of the owner, or his agent, as to the result to be obtained, he is an independent contractor.

39 C. J. , p. 1316, sec. 1518.

The control of the workmen doing the actual manual labor in the performance of the work is an extremely important element in determining whether the employee is an independent contractor. The fact that the contractor employs, pays, and has full power to control the workmen is practically decisive of his independence.

But the fact that the employer has some incidental powers over the laborers doing the actual manual work, such as the right to compel the contractor to discharge any workman who is incompetent or who commits some wrongful act or depredation, though generally a fact of some importance, tending to show his subserviency, does not necessarily require the contractor to be considered a mere servant. In fact, the provision for the discharge may tend to show the independency of the contractor, as, for instance, when the contract provides that the contractor shall discharge incompetent workmen in his employment. So the fact that the employer can procure the discharge of a workman only in an indirect manner, through, the contractor and not merely by his own act, is sometimes considered as repelling the idea of the contractor's subserviency.

14 R. C. L., sec. 8, p. 71.

Among the numerous tests which have been from time to time suggested for the determination of the question, whose servant is this? are the following, each of which has in some case been considered as conclusively fixing the existence of the relations: First, the right to direct the servant; second, the right to discharge the servant; third, the right to control the servant; fourth, that he is not a master who is interested in the ultimate result of the work done, as a whole, but not in the details of the performance.

Railway v. Norway, 62 Miss. 565.

An independent contractor is one who renders service in the course of an occupation representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.

Crescent Baking Co. v. Denton, 147 Miss. 639; 112 So. 21; Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 191; Till v. Fairbanks, 111 Miss. 123, 71 So. 298; Callahan v. Rayburn, 110 Miss. 107, 69 So. 669.

The retention of the right to supervise as to results as distinguished from the right to supervise as to the means by which the immediate results should be obtained does not affect the relationship. It is only when the employer goes beyond the limits of that right, commits some affirmative act of negligence as by taking some part in the performance of the work, other than such general supervision as is necessary to insure its performance, that he is chargeable.

39 C. J., p. 1319.

J. A. Cunningham, F. W. Cunningham and J. S. Finch, all of Booneville, for appellees.

The scope of agency is in a most vague and indefinite form, but nevertheless, there is in general no particular mode prescribed by law in which agency must be created.

2 C. J., sec. 29, p. 434.

The status of an agency, without any mode of creation, may be really implied and does not depend upon an express appointment. Such implication comes from the word or conduct of the parties considered in connection with the circumstances of the particular case involved, the agency in question.

2 C. J., sec. 34, p. 435, sec. 347, pp. 687-8.

The scope of an agency is co-extensive with the scope of the principal business, or property, and where the agency is implied on account of the principal entrusting him with the management of certain business, the scope is co-extensive with that of the business entrusted to the agent.

2 C. J., sec. 287, p. 643.

Under all of the tests, this record shows that appellants were the master.

Pan American Petroleum Corporation v. Pate, 126 So. 480; 1. Labatt's on Master and Servant, p. 8, sec. 57, p. 192.

Mortgagees sometimes go into possession by agreement.

Jones on Mortgages (8 Ed.), sec. 886, p. 217; 41 C. J., secs. 578, 584, pp. 610, 617.

The mortgagee in possession is liable for the tortious acts under his management.

41. Corpus Juris, sec. 581, p. 613.

A provision in an agreement which confers upon the superior employer the right of controlling the contractor himself in respect to the details of the work must necessarily imply that he is to retain the right of controlling, to the same extent, the servants who are the instruments through whom the contractor performs the work. Otherwise such a provision would be meaningless and ineffectual.

Callahan Const. Co. V. Rayburn, 69 so. 669.

A formula has been worked out by our courts as to "whose servant is this?" among which were the following: (1) The right to select the servant; (2) The right to discharge the servant; (3) The right to control the servant, and (4) that he is not a master who is interested in the ultimate result of the work alone as a whole, but not in the details of the performance.

Hutchinson Moore Lumber Co. v. Pittman, 122 So. 191.

There are several requisites necessary in order to constitute the relationship of master and servant; the main essential in this regard being that the servant was subject to the control of the employer in the operation in question.

Crescent Baking Company v. Denton, 112 So. 21.

Argued orally by W. C. Sweat, for appellant, and J. A. Cunningham, for appellees.

OPINION

Anderson, J.

The appellee Mrs. Effie Northcutt, for herself and on behalf of her three minor children, filed her bill in the chancery court of Tishomingo county against appellant, Louis Werner Sawmill Company, a foreign corporation, and the Golden Sawmill Company, a domestic corporation, and F. R. Pierce, R. L. Curtis, H. F. Quinn, and Alton McGaughey, to recover damages for the death of her husband, H. E. Northcutt, alleged to have been caused by the negligence of the defendants. The chancery court acquired jurisdiction under section 173 of the Code of 1930, providing for attachments in chancery against nonresidents, absent or absconding debtors, under the conditions set out in the statute. The cause was dismissed as to all the defendants except the Louis Werner Sawmill Company. There was a trial on the original bill as amended, answer thereto, and proofs, resulting in a decree in favor of appellees in the sum of ten thousand dollars. From that decree, appellant prosecutes this appeal.

Appellant defended the action upon two grounds; (1) That the decedent lost his life solely on account of his own negligence, and not as the result of any negligence on the part of appellant; (2) that, if the deceased lost his life through the negligent operation of a logging engine, as charged in the bill, still appellant is not liable, because the relation of master and servant did not exist between appellant and the employees in charge of such engine.

We are of opinion that the latter defense upon the law and the evidence was established, and therefore the decree should have been in favor of appellant instead of the appellees. In view of the rule that the chancellor's findings on issues of fact will not be set aside on appeal, unless such findings are against the overwhelming weight of the evidence, in stating the case we shall assume as proven every material fact favorable to appellees which the evidence proves directly or by reasonable inference.

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