Mason & Hoge Co. v. Highland

• Decision Date: 10 February 1909
• Citation: 116 S.W. 320
• Parties: MASON & HOGE CO. et al. v. HIGHLAND.
• Court: Kentucky Court of Appeals

116 S.W. 320

MASON & HOGE CO. et al. v. HIGHLAND.

Court of Appeals of Kentucky.

February 10, 1909

Appeal from Circuit Court, Franklin County.

"Not to be officially reported."

Action by D. B. Highland against the Mason & Hoge Company and others. From a judgment for plaintiff, defendants appeal. Reversed.

T. L Edelen, for appellants.

B. G Williams, Edwards, Ogden & Peak, and Chas. H. Searcy, for appellee.

LASSING J.

Plaintiff instituted suit against the Louisville & Nashville Railroad Company, Mason & Hoge Company, and Mason, Hoge & King seeking to recover damages for an injury which happened to him while engaged as a day laborer in the construction of a tunnel at La Follette, Tenn. He alleged that while he was engaged in removing rafters supporting the temporary walls used in constructing the tunnel, through the negligence and carelessness of the defendants, their agents and servants, superior in authority to him, he was thrown to the ground, a distance of 14 feet, and seriously and permanently injured. The defendants and each of them moved that plaintiff be required to make his petition more specific so as to show what agents or servants were guilty of the negligence and carelessness which resulted in his injury. He thereupon filed an amendment, in which he alleged that his injury was due to the negligence and carelessness of the defendants Mason & Hoge Company, and Mason, Hoge & King, their servants, and agents, and particularly John N. White and Peter King, who were superior in authority to this plaintiff. He further alleged that the work which he was assigned to do was dangerous, and that he was required to place himself in a dangerous, unsafe, and insecure position, that he had not theretofore been engaged in work of this character, and did not know of its danger, and could not, by the exercise of ordinary care, have discovered it, while the defendants, though knowing of its danger, failed and refused to notify or warn him that the place in which he was required to work was dangerous and the work of itself hazardous, that by reason of their requiring him to work in a dangerous place and their failure to notify him of its danger he was injured. Upon the filing of the amendment, in which it was alleged that the injury was due to the negligence of Mason & Hoge Company and Mason, Hoge & King, the suit was dismissed as to the Louisville & Nashville Railroad Company. The remaining defendants answered. In the first paragraph of the answer they traversed the material averments of the petition and its amendment. In the second paragraph they pleaded contributory negligence and assumed risk. A reply traversing the affirmative allegations of the answer completed the issue. Thereafter the defendants tendered and were permitted to file an amended answer, in which they pleaded that the plaintiff was not employed by them, or either of them, but by one Joseph Lally, who was an independent contractor engaged in lining the said tunnel with brick, and that, if he was injured at all, it was while in the service of said Lally. In an amended reply the allegations of the amended answer were traversed. The case was tried by a jury, which returned a verdict in favor of plaintiff for $5,000. The defendants appeal.

Three grounds are assigned why the judgment should be reversed: First, because it was conclusively shown that Joseph Lally was an independent contractor, and that the plaintiff was injured while in his employ, and that, therefore, the defendants are not liable or answerable for his said injury, and the jury should have been peremptorily instructed to find for them; second, that the business in which plaintiff was engaged at the time he was injured was obviously a dangerous and hazardous business, and that in undertaking to do the work under the circumstances he assumed the risk and he should not be permitted to recover; and, third, that the court misinstructed the jury to the prejudice of appellants.

It is now well settled, not only in this state but in courts of last resort generally, that the relation of master and servant does not exist between an employer and the servants of an independent contractor. An "independent contractor" is defined in 26 Cyc. p. 970, to be "one who contracts to do a specific piece of work furnishing his own assistants, and executing the work either entirely in accordance with his own ideas or in accordance with a plan previously given to him by the person for whom the work is done, without being subject to the orders of the latter in respect to the details...