Patrick v. Giant Lumber Co

• Decision Date: 03 December 1913
• Citation: 80 S.E. 153,164 N.C. 208
• Parties: PATRICK v. GIANT LUMBER CO.
• Court: North Carolina Supreme Court

80 S.E. 153

164 N.C. 208

PATRICK

v.GIANT LUMBER CO.

Supreme Court of North Carolina.

Dec. 3, 1913.

1. Master and Servant (§ 332*)—Injuries to Third Person—Existence of Relation— Question for Jury.

In an action for damages to land from a fire escaping from the land of the defendant company, held, on the evidence, that whether the company retained supervision and control over the persons logging and running a sawmill on its land and their methods of work was for the jury.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1274-1277; Dec. Dig. § 332.*]

2. Master and Servant (§ 318*)—Liability to Third Persons—Independent Contractor.

The chief fact which determines one to be an independent contractor is the fact that the employer has no right to control the mode of doing the work contracted for; if the employer has the right to control, it is immaterial whether he actually exercises it.

[Ed. Note.—For other cases, see Master and Servant, Cent Dig. §§ 1257, 1258; Dec. Dig. § 318.*]

Appeal from Superior Court, Wilkes County; Cline, Judge.

Action by Isom Patrick against the Giant Lumber Company. Judgment for plaintiff, and defendant appeals. No error.

The issues submitted were:

"(1) Did the defendant lumber company set fire to its woodland adjoining the lands of the plaintiff without giving any notice of its intention to do so? Answer: Yes.

"(2) If so, did such fire escape from defendant's land to and burn over the plaintiff's land, injuring and destroying the plaintiff's fence, timber, and undergrowth, as alleged in the complaint? Answer: Yes.

"(3) What damage is the plaintiff entitled to recover of the defendant, Giant Lumber Company? Answer: $300."

Finley & Hendren and W. W. Barber, all of Wilkesboro, for appellant.

Benbow & Caviness and T. C. Bowie, of Jefferson, for appellee.

BROWN, J. This action was brought to recover damages caused to the plaintiff's land by the negligent setting out of fire of the defendant without giving due notice. The fire spread to the plaintiff's lands and destroyed his timber. The action was originally brought against W. H. Taylor and Ham Miller, as well as the defendant company, but a nonsuit was taken as to them. The only assignment of error is the refusal of the court to allow the motion to nonsuit

The defendant contends that the negligence complained of was that of Taylor and Miller, and that they were independent contractors, and that, under the evidence as a whole, it is not liable for the tort complained of, and that therefore the court below should have allowed its motion, under the statute, to nonsuit plaintiff. The plaintiff, on the other hand, contends that Miller and Taylor were not...