Norris v. Bryant
| Decision Date | 28 July 1950 |
| Docket Number | 16393. |
| Citation | 60 S.E.2d 844,217 S.C. 389 |
| Parties | NORRIS v. BRYANT et al. |
| Court | South Carolina Supreme Court |
Julien D. Wyatt, Felix L. Finley, Jr., Pickens, for appellant.
Haynsworth & Haynsworth, W. G. Acker, Pickens, for respondents.
This action was instituted by appellant, plaintiff below, in December, 1945 to recover damages for personal injuries received on April 13, 1945. About noon on that date he, along with several other workmen, was riding in a truck belonging to Pickens County with his legs hanging over the left side. At a point on Highway 178 about three miles north of Pickens this truck was met on a bridge by a truck and trailer driven by Roy Bryant. Appellant's left leg was severed as the two vehicles passed.
Appellant alleged in his complaint 'that the defendants Roy Bryant and Taft Chappell variously and interchangeably operated said truck but that the operation thereof was in and about the sole business of the defendant, Poinsett Lumber and Manufacturning Company, and that the said defendant corporation was the actual operator of the defendant truck through S. C. Grant Roy Bryant and Taft Chappell as its agents and servants.' Judgment was sought against Bryant, Chappell, Grant, and the Poinsett Lumber and Manufacturing Company on account of the negligent and reckless operation of said truck. The truck and trailer driven by Bryant were attached and thereafter released upon bond being furnished in the sum of $1000.
The defendants filed separate answers. Each contained a general denial and a plea of contributory negligence and recklessness. It was further alleged that Bryant was driving said truck as an employee of Chappell who was hauling logs as an independent contractor under a contract with Grant, and that Grant was an independent contractor operating under a contract between him and the Poinsett Lumber and Manufacturing Company.
Subsequent to the commencement of this action, appellant, as an employee of Pickens County, was awarded the sum of $6647.23 by the Industrial Commission to cover disability, disfigurement and medical expenses. This award was duly paid from the State Workmen's Compensation Fund. The complaint was accordingly amended by alleging that the action was brought for the benefit of the State of South Carolina to the extent of the amount of said award and for the benefit of appellant for any amount recovered in excess thereof.
The case was tried in July, 1948. At the conclusion of all the testimony the Court granted a motion for a directed verdict as to the corporate defendant and Grant upon the ground that these two defendants were independent contractors. The jury returned a verdict against Chappell and Bryant for actual damages in the sum of $3000 and punitive damages in the sum of $5000. Bryant and Chappell have not appealed. Appellant, plaintiff below, has appealed from the judgment of the Court in directing a verdict in favor of Grant and the Poinsett Lumber and Manufacturing Company. He also contends on this appeal that the Court unduly restricted the pre-trial examination of the defendants and that there was error in the exclusion of certain evidence.
The primary inquiry is as to the relationship between the various defendants. We shall first determine whether the relation of employer and independent contractor existed between the Poinsett Lumber and Manufacturing Company, hereinafter referred to as Poinsett, and Grant.
Poinsett is a New Jersey corporation. It owns large tracts of timber in the mountains of Pickens and Oconee Counties which are used to supply its sawmill and veneer plant at Pickens. On February 3, 1945, it entered into a rather lengthy written contract with Grant under which Grant agreed to cut all trees of certain specified dimensions, to be marked and designated by Poinsett, from an area of approximately 1124 acres, and to skid and haul the logs to Poinsett's plant at Pickens. The estimated amount of merchantable timber to be cut was four million board feet which was to be delivered at a rate of not less than 40,000 board feet per week. Grant was required to complete the contract on or before November, 1947. Poinsett reserved the right to limit the cutting and hauling of the timber during a period of not more than three months or to entirely stop same for such length of time, upon giving ten days notice of such intention to Grant, in which event the period for finally completing the contract was to be automatically extended to the extent of the delay caused by such limitation or cessation of the work. Grant was to be paid for cutting, skidding and hauling said logs at the rate of $23 per thousand board feet. Settlement was to be made weekly. As far as deemed necessary for the protection of the future stand of timber, the plan of logging operations was to be approved by Poinsett. All felling and bucking were to be done according to the instructions by a representative of Poinsett when he deemed such instructions necessary. All trees were to be cut at a stipulated height from the ground. All logs cut were to be hauled within a certain time and as far as practicable in the order in which they were cut. Grant was to be governed solely by Poinsett's 'needs and condition of the logs to be harvested'. Grant was authorized to build on the lands of Poinsett any necessary camps and roads, but they were to be located and operated to the satisfaction of Poinsett's manager. Grant agreed to maintain the camps, stables and other structures erected by him in a sanitary condition and to burn or remove all rubbish and debris.
While the contract remained in force, Grant agreed to do all in his power to prevent and suppress forest fires on the 'contracted areas' and to require his employees, sub-contractors and their employees to do likewise, and to also assist in fighting forest fires on other lands of Poinsett. No payment was to be made for this service in the event that the fire was due to the negligence of Grant or any of his sub-contractors or employees, but otherwise Grant was to be paid for this service at the rate prevailing in that vicinity for that kind of work. It was further stipulated: 'It is distinctly understood and agreed that all persons so used by the second party (Grant) wherever employed shall be and remain the employees of the second party or his sub-contractors and shall not be deemed employees of the first party (Poinsett).'
It was agreed that from the consideration heretofore mentioned of $23 per thousand board feet, that there should be deducted by Poinsett the sum of $1 per thousand feet to apply against any insurance payments defrayed by Poinsett, and in addition, that 10% would be retained by Poinsett pending the completion of the contract for the purpose of insuring the payment of all indebtedness owing by Grant to Poinsett and any sum which Poinsett was required to pay on account of the acts or conduct of Grant or his employees.
The agreement further provided:
There are other provisions in the contract but they are not material to the question before us. We have only undertaken to set out those relevant to the question of whether the contract created the relation of independent contractor.
The Courts have encountered much difficulty in determining whether under various circumstances a person doing work for another was an employee or an independent contractor. It is generally recognized that it is impossible to formulate a fixed or absolute rule applicable to all cases and that each must be determined on its own facts. However, there are many well recognized and fairly typical indicia of the status of independent contractor, even though the presence of one or more of them in a case is not necessarily conclusive. In the Restatement of the Law of Agency by the American Law Institute, Volume 1, Section 220, page 483, various elements which may be...
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