Reeves v. John A. Cooper Company

• Decision Date: 15 October 1969
• Docket Number: No. F-68-C-9.,F-68-C-9.
• Parties: R. W. REEVES, Plaintiff, v. JOHN A. COOPER COMPANY, successor to Cherokee Village Development Co., Inc., and E. L. Keith, Defendants.
• Court: U.S. District Court — Western District of Arkansas

304 F. Supp. 828

R. W. REEVES, Plaintiff, v. JOHN A. COOPER COMPANY, successor to Cherokee Village Development Co., Inc., and E. L. Keith, Defendants.

No. F-68-C-9.

United States District Court W. D. Arkansas, Fayetteville Division.

October 15, 1969.

Garner & Parker, Ft. Smith, Ark., Richard W. Mason, St. Joseph, Mo., for plaintiff.

Daily & Woods, Ft. Smith, Ark., Little & Lawrence, Charles L. Gocio, Bentonville, Ark., for defendants.

OPINION

JOHN E. MILLER, Senior District Judge (sitting by designation).

Plaintiff seeks to recover for personal injuries and damages allegedly sustained by him on July 17, 1967, when he was kicked by a horse owned by the defendant Keith while participating in a horseback ride made available to guests of the defendant corporation.

Jurisdiction is established by diversity of citizenship and the amount in controversy.

Plaintiff alleges that the defendant corporation was negligent in failing to exercise reasonable care to make safe the activities advertised and offered as a part of its vacation package, in attempting to delegate to the defendant Keith a non-delegable duty of reasonable care for the safety of its guests, and in failing to protect its guests against injury at the hands of third persons when it was within its power to do so.

Plaintiff alleges that the defendant Keith was negligent in allowing the horse which kicked plaintiff to be a part of the trail ride because the horse had recently foaled and because Keith was aware of its propensity to kick other horses, in failing to warn plaintiff of the horse's propensity to kick, in failing to use some form of safety device to prevent the horse from kicking, and in allowing his agents and servants to neglect their duties while in the course of their employment.

In his answer Keith denies any negligence on his part, alleges that he is an independent contractor, pleads the defenses of contributory negligence as a total or partial bar to recovery, unavoidable accident and assumption of risk. The answer of the defendant Cooper specifically pleads the same defenses and alleges that Keith is an independent contractor, for whose negligence Cooper is not responsible.

Plaintiff introduced in chief certain depositions¹ and a letter from an attorney for defendant Cooper to one of the attorneys for plaintiff regarding plaintiff's medical expenses, and rested his case. Both defendants specifically agreed to the introduction of these items and orally moved for directed verdicts. The court deferred consideration of both motions and, at the close of all the evidence, took the matter under advisement.

The following shall constitute the findings of fact and conclusions of law of the court, as contemplated by Rule 52(a) of the Federal Rules of Civil Procedure.

The incident complained of occurred in Missouri, just across the Arkansas state line. No choice of law has been urged upon the court. It appears that there is no substantial difference between the law of Arkansas and that of Missouri regarding independent contractors, infra, and the jurisprudence of neither state has resulted in a definitive study of the law of equine vices. Dickie & Goelzer v. Henderson (1910), 95 Ark. 78, 128 S.W. 561; Putermann v. Simon (1907), 127 Mo.App. 511, 105 S.W. 1098.

The John A. Cooper Company owns and operates, among other things, Bella Vista Village, a massive land development and resort area near Bentonville, Arkansas. As part of an advertising scheme designed to lure potential purchasers of home sites to the area, the company offers free housing and the use of its recreational facilities to selected individuals, usually for a period of two days. Plaintiff's parents received such an offer by mail, accompanied by a brochure depicting individuals engaging in various recreational activities, including horseback riding, and an information sheet listing horseback riding as an organized activity. Plaintiff, who was shortly to marry, concluded that Bella Vista Village might well be a pleasant and inexpensive honeymoon site and, by agreement with the company, personally accepted the offer. It is conceded that plaintiff was an invited guest of the corporation.

E. L. Keith rents saddle horses, doing business as the K-Bar Dude Ranch, which comprises approximately four hundred acres located five miles north of Bella Vista Village. At the time of the accident and injury to plaintiff in 1967, Keith had an informal arrangement with Bella Vista Village under which guests of the latter might avail themselves of free horseback riding. Upon registering at Bella Vista, guests were informed of the variety and location of the available recreational facilities. Guests who patronized the K-Bar Dude Ranch were requested by Keith to sign a sheet of paper, and the accumulated list of names was transmitted by Keith to Bella Vista at the end of each month, accompanied by a bill for services rendered. Keith was compensated by the corporation at the rate of one dollar for each name appearing on the list.

Plaintiff was informed of the availability and location of the K-Bar Dude Ranch when he registered at Bella Vista. On the following day, plaintiff and his wife drove to K-Bar, informed one of Keith's employees that they were from Bella Vista, and were given the promised free horseback ride. The facts surrounding the event are in dispute, but it appears that plaintiff was directed to ride a mare named "Goldy," and plaintiff's wife was given another mare named "Honey." They mounted without aid, but without difficulty, as both had some previous experience with horses, and neither horse exhibited a pernicious nature while in the corral area. Thirteen persons other than plaintiff and his wife participated in the ride. In addition, four trail guides employed by Keith accompanied the party. The chief guide warned those riding before they left the corral that the horses were to be kept in line during the ride, one following the other. In practice, the horses were kept one and one-half feet apart, from head to hip. The party left the corral in single file, with the plaintiff riding directly behind his wife near the end of the line. One guide led the group, one was positioned on each side near the middle of the line, and the other followed at the rear. It is admitted that the guides, other than the leader, were employed to keep the horses close together and to prevent those riding from pulling out of the line. On at least one occasion prior to the accident plaintiff had attempted to pull "Goldy" out of line and was warned of the guides. At a point approximately one-eighth of a mile down the riding path from the corral, plaintiff again pulled his horse out of the line and alongside and to the left of "Honey," the horse ridden by his wife. "Honey" then attempted to kick "Goldy," at which point plaintiff, realizing his error, pulled back on "Goldy's" reins. His horse then wheeled to the right, its forequarters coming to rest immediately behind "Honey's" hoofs. "Honey" took full advantage of this second opportunity, fracturing plaintiff's left leg.

It is quite clear that E. L. Keith was an independent contractor, as that term is generally defined. The usual test in distinguishing an employee from an independent contractor is set forth in Ozan Lumber Co. v. Tidwell (1946), 210 Ark. 942, at page 949, 198 S.W.2d 182, at page 185, as follows:

"It has been said in many cases that the vital test in determining whether a person employed to do certain work is an independent contractor, or a mere servant, is the control over the work which is reserved by the employer. Broadly stated the rule is that, if the contractor is under the control of the employer, he is a servant; if not under such control, he is an independent contractor."

In Moore and Chicago Mill & Lumber Co. v. Phillips (1938), 197 Ark. 131, at page 137, 120 S.W.2d 722, at page 725, the court stated:

"By a long line of decisions this court is committed to the universal rule that, where the contractor is to produce a certain result, according to specific and definite contractual directions, agreed upon and made a part of the contract, and the duty of the contractor is to produce the net result by means and methods of his own choice, and the owner is not concerned with the physical conduct of either the contractor or his employees, then the contract does not create the relation of master and servant. This court has consistently accepted and stated the settled rule that even though control and direction be retained by the owner, the relation of master and servant is not thereby created unless such control and direction relate to the physical conduct of the contractor in the performance of the work with respect to the details thereof. St. Louis, I. M. & S. Ry. Co. v. Gillihan, 77 Ark. 551, 92 S.W. 793; Moore Lumber Co. v. Starrett, 170 Ark. 92, 279 S.W. 4."

In the case of Moaten v. Columbia Cotton Oil Co. (1936), 193 Ark. 97, at page 100, 97 S.W.2d 629, at page 630, the court stated:

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

It is undisputed that the arrangement between the corporation and Keith was an informal one, under which Keith provided horseback riding to guests of Bella Vista Village and was compensated therefor by the corporation. The monthly statement and list of those riding constituted the only contact between the parties. There is no contention that Keith was in any manner subject to the...