Peele v. Bright

• Decision Date: 08 June 1916
• Citation: 89 S.E. 238
• Parties: PEELE . v. BRIGHT.
• Court: Virginia Supreme Court

89 S.E. 238

(119 Va. 182)

PEELE .

v.BRIGHT.

Supreme Court of Appeals of Virginia.

June 8, 1916.

Error to Circuit Court of City of Norfolk.

Action by Anthony Bright against Calvin Peele. Judgment for plaintiff, and defendant prays writ of error. Judgment affirmed.

S. Burnell Bragg, of Norfolk, for plaintiff j in error.

Jas. S. Barron, of Norfolk, for defendant in error.

KELLY, J. Calvin Peele, a contractor, was engaged to tear down certain buildings and do certain other work on a lot in the city of Norfolk. Anthony Bright, an aged colored man, was employed by him to clean and hack old brick on the premises at the rate of $1 per thousand, Bright furnishing his own tools and selecting his own hours for work. Several other colored men were similarly employed.

While engaged at this work and at a point on the premises assigned to him by Peele, a tree standing on the lot was cut down by men employed by the latter and acting under his orders. This tree struck Bright and caused injuries for which he brought an action against Peele, and recovered the judgment here in question.

The first error assigned is that the court improperly refused to give the following instruction asked for by the defendant:

"The court further instructs the jury that the defendant did not owe to the plaintiff the same degree of care as if the plaintiff was an employ or servant of the defendant. The plaintiff was an independent or subcontractor, and was not under the direct management and control of the defendant."

The instruction was erroneous and properly refused for two reasons. The first is that, to say the least of it, there was an abundance of evidence tending to show that the plaintiff was the employe and servant of the defendant in the commonest and most usual sense of those terms. If the evidence is at all susceptible of two interpretations, certainly one of them would be that the plaintiff was an ordinary employe of the defendant. This being true, the instruction improperly withdrew from the jury the question, whether the relation of independent contractor did in fact exist between the parties. Emmerson v. Fay, 94 Va. 60, 64, 26 S. E. 386; Stagg v. Taylor's Adm'x, 89 S. E. 237.

The second objection to the instruction is that it incorrectly defines the defendant's duty, even if plaintiff did stand in the relation of an independent contractor. He was lawfully on the premises, engaged at work at the instance of the defendant and at a point designated by him. Under these circumstances, conceding that the plaintiff was an independent contractor, the defendant was under as much legal obligation to refrain from felling a tree on him as if his relation were...