Pottorff v. The Fidelity Coal Mining Company

• Decision Date: 09 March 1912
• Docket Number: 17,525
• Citation: 122 P. 120,86 Kan. 774
• Parties: MINNIE POTTORFF, Appellant, v. THE FIDELITY COAL MINING COMPANY et al., Appellees
• Court: Kansas Supreme Court

122 P. 120

86 Kan. 774

MINNIE POTTORFF, Appellant, v. THE FIDELITY COAL MINING COMPANY et al., Appellees

No. 17,525

Supreme Court of Kansas

March 9, 1912

Decided January, 1912.

Appeal from Cherokee district court.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Personal Injuries--"Independent Contractor." When a person lets out work to another, the contractee reserving no control over the work or workmen, the relation of contractor and contractee exists and not that of master and servant, and the contractee is not liable for the negligent or improper execution of the work by the contractor.

2. "INDEPENDENT CONTRACTOR" DEFINED. An independent contractor generally is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer, except as to the result of his work.

3. "INDEPENDENT CONTRACTOR" Employer--Employee--Liability. An employer may make himself liable by retaining the right to direct and control the time and manner or means of executing the work, although he may inspect and supervise it to the extent necessary to produce the result intended by the contract without incurring such liability.

4. "INDEPENDENT CONTRACTOR" Independent Contractor. A contract between the owner of a coal mine and another party for its operation, is examined, and it is held that this party is not an independent contractor within the rules stated in the above paragraphs.

Ralph S. Nelson, and E. H. Ware, for the appellant.

W. R. Cowley, Al F. Williams, W. C. Scarritt, J. Walter Farrar, and W. R. Thurmond, for the appellees.

OPINION

BENSON, J.:

The principal issue is between the appellant, Minnie Pottorff, and the Fidelity Coal Mining Company, appellee, and arises upon a demurrer to a reply. The determination of this issue rests upon the legal effect of a written contract between the coal mining company and Barrett. This instrument contains the following provisions:

"That said Coal Company for and in consideration of the covenants hereinafter contained, has this day demised, leased, turned over and delivered to the said Barrett, possession of all the underground for the extraction of coal, shafts, including Engines, Boilers, Hoisting Machinery, and other fixed equipment, and mines hereinafter described, and also possession of the personal property, mine supplies and mules now in and about said mines as the same are inventoried and valued in schedule hereto attached and made a part of this lease and agreement.

"The lands, coal shafts and mines hereinbefore mentioned are the property of the party of the first part and are described as follows, to-wit: (Description of mines.)

"Together with all mine buildings, Machinery, Engines, Boilers, and other equipment, located at the aforesaid mines, respectively at the date of this agreement. . . .

"First. Said Barrett agrees to proceed with all reasonable diligence subject to the control and limitations herein contained to mine and take out all coal lying under the lands hereinbefore described which can be taken out at the mine run mining price in force in district, and with safety to the mines and miners, and to do so in a good and workmanlike manner and to deliver the said coal to the said Coal Company free on board railroad cars, at or near the mouth of said shafts.

"Second. The said Coal Company agrees to receive the coal so mined and delivered and to pay said Barrett for such coal as shall be mined and produced at the said shafts, as follows, to-wit: $ 1.25 per ton of Two Thousand (2000) pounds for mine run coal. This price is based on mine run mining price 72c per ton and may be varied during this lease and agreement only as the mine run mining price in the mining district in which said mines are located, may change from the prices in effect at the time this lease and agreement is to be made effective. Meaning that said Barrett shall he paid at all times 53c per ton above mine run mining price, coal to be weighed when possible on railroad track scales, at or near mines.

"Third. The said Barrett agrees that he will not sell any of the coal to be mined by him under this agreement to any person or corporation others than said coal company and that he will confine his output to the requirements and demands of said Coal Company.

"Fourth. Said Barrett agrees that he (and the miners to be employed by him, so far as he can influence them), will purchase all merchandise, powder and supplies required by them, from said Coal Company at its store in Stone City, Kansas, and the said Coal Company agrees that it will sell all such merchandise, powder and supplies at the regular retail price, as charged in this district, and it is agreed that said Barrett, will turn in daily to the office of the said Coal Company at Stone City, the time and earnings of his employes, and that said Coal Company will take orders from said employes on said Barrett for the amount of goods sold said employes, and said Barrett hereby agrees to protect said orders and all indebtedness of said employes to said Coal Company, by allowing said Coal Company to pay said employes on each pay day and to deduct the amount of all such indebtedness from the earnings of said employes, and it is further agreed that the said Coal Company, will pay off said employes on all pay days, provided, however, that if the money due said Barrett from said Coal Company on any pay day is not enough to discharge the pay roll of said Barrett, the said Coal Company shall not be obliged to pay the said employes unless the said Barrett furnishes the balance of the funds necessary therefor.

"Fifth. The said Coal Company agrees to sell to said Barrett Powder for his use in said mines at ten (10c) cents per keg over and above cost to them.

"Sixth. (Provides for semi-monthly settlements between the parties.)

"Seventh. It is agreed that the personal property, material and mine supplies hereinbefore referred to . . . are for the use and service of said Barrett without payment therefor, and at the conclusion of this lease and agreement, said Barrett to turn back to said Coal Company all of said property in as good condition as he received the same, natural wear and tear excepted.

"Eighth. (Provides that the mules or their equivalent in value as fixed in the inventory shall be returned to the company at the expiration of the agreement.)

"Ninth. (Provides that the equipment added by Barrett shall be the property of the Company to be surrendered to the Company); Except, that if said Barrett shall have purchased and added to said mines or either of them any mining machinery and mechanical haulage, he shall have the privilege of removing such mining machinery and mechanical haulage so purchased by him before surrendering possession of the premises and properties covered by this lease and agreement.

"Tenth. It is agreed that said Coal Company, by its authorized representatives shall have at all times the right to enter said mines, or either of them, for the purpose of making personal inspection and ascertaining the condition, character and progress of the work, but that it shall have or exercise no control over the miners or other employes who may be at that time at work therein.

"Eleventh. It is further mutually agreed that said Coal Company shall be under no liability, under any circumstances, for accident or injury to life, limb or property, in or about said mines, or either of them. It being understood that in event of fire from accident, said Barrett, is in no way liable to said Coal Company for loss to property caused by such fire.

"Twelfth. . . . Barrett shall not be permitted to assign or sublet this contract or any portion of his rights or privileges hereunder, to any person or persons,--firm or corporation without the written consent of said Coal Company.

"Thirteenth. . . . This lease and agreement shall continue for a term of FIVE years from the date hereof, provided that the Coal Company reserves the right to terminate this contract and any and all rights and privileges of the said Barrett hereunder, at any time during the term hereof, provided said Coal Company should wish to sell the mines, or should said Barrett's manner of working the mines not be agreeable to said Coal Company, in either event said lease and agreement can be annulled by said Coal Company,--giving said Barrett written notice to that effect it being understood that said Barrett has the privilege of operating said mines sixty continuous working days from date of such written notice. It being further agreed that in event said Coal Company stops said Barrett from working said mines within that time said Barrett's privilege is continued until such time as said company shall have given him sixty working days for loading coal.

"Fifteenth. It is agreed that the coal herein provided for, to be mined and delivered by said Barrett to said Coal Company, shall be prepared for market on the present established screen equipment at the mines aforesaid, and the said Barrett further agrees to make such sizes and kinds of coal with the present equipment as may be desired by said Coal Company. If at any time during the term of this lease, the Coal Company should desire to change any of the existing screens, it is at liberty to do so at its own expense, the said Barrett being responsible only for keeping the same in repair. It being understood and agreed that should the said Coal Company desire to abandon said mines or either of them, on or before the expiration of this lease and agreement, the said Barrett agrees to deliver the track and material below ground to the said Coal Company on the top of the ground without any cost for raising the same."

The schedule...