Regan v. Foxworth Veneer Co.

• Decision Date: 10 May 1937
• Docket Number: 32686
• Citation: 178 Miss. 654,174 So. 48
• Court: Mississippi Supreme Court
• Parties: REGAN et al. v. FOXWORTH VENEER CO

174 So. 48

178 Miss. 654

REGAN et al. v. FOXWORTH VENEER CO

No. 32686

Supreme Court of Mississippi

May 10, 1937

Division B

MASTER AND SERVANT.

Manufacturer of veneer held not the "master" of logging woods foreman so as to be liable for death of member of logging crew resulting from alleged negligence of foreman, where foreman was employed by partnership furnishing logs to manufacturer under contract, which, though general manager of manufacturer sometimes made suggestions concerning work, gave manufacturer no right to exercise any control over manner and means of doing the work.

HON HARVEY MCGEHEE, Judge.

APPEAL from circuit court of Marion county HON. HARVEY MCGEHEE Judge.

Action by L. P. Regan and others against the Foxworth Veneer Company. From a judgment on a directed verdict in favor of the defendant, the plaintiffs appeal. Affirmed.

Affirmed.

Henry Mounger and Hall & Hall, all of Columbia, for appellants.

There was clearly an issue for determination by a jury on the question of negligence causing the death of plaintiffs' intestate.

New Deemer Mfg. Co. v. Alexander, 85 So. 104, 122 Miss. 859.

The evidence showed that appellee had control over the operative details of the work in which deceased met his death. Under the taw, if appellee had such control, it is liable in damages on account thereof, and it was a question for the jury to determine whether appellee exercised such control and whether it was accordingly liable, and the lower court erred in granting the peremptory instruction for appellee and in refusing to submit this issue to the jury.

A. L. I. Restatement Torts, sec. 414; R. R. v. Norwood, 62 Miss. 565; Southern Express Co. v. Brown, 67 Miss. 260, 7 So. 318; Gulf Refining Co. v. Nations, 145 So. 327, 167 Miss. 315; Callahan Const. Co. v. Rayburn, 69 So. 669, 110 Miss. 107; Hinton & Walker v. Pearson, 107 So. 275, 142 Miss. 50; Kisner v. Jackson, 132 So. 90, 159 Miss. 424; Texas Co. v. Mills, 156 So. 866, 171 Miss. 231; Texas Co. v. Jackson, 165 So. 546, 174 Miss. 737; Gulf Coast Motor Express Co. v. Diggs, 165 So. 292, 174 Miss. 650; Life & Cas. Ins. Co. v. Curtis, 165 So. 435, 174 Miss. 768.

R. D. Ford and Rawls & Hathorn, all of Columbia, for appellee.

We submit that when this record is viewed and considered in its entirety, viewed from its four corners, there is absolutely nothing in the record to sustain appellants' contention that the trial court should have submitted the issue of whether or not Clyde Regan, the deceased, was a servant of appellee at the time of his death, to the jury.

It is not necessary that an owner or employer, in order to avoid the responsibilities of master, shall entirely absent himself from the work, or entirely disassociate himself from an active interest, or an active aid in the course of its performance, or from a supervision of the results of that performance so long as, in respect to the details of the work necessary, or proper, to be performed for the production of the net results required by the contract, the physical management of the instrumentalities used, and the physical conduct of those employed therein, remain under the sole control of the contractor, or of those placed in authority by him or by his selection and direction.

Cook v.-Wright, 171 So. 686; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; HutchinsonMoore Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 191.

Argued orally by Lee D. Hall for appellant, and by H. C. Rawls, for appellee.

OPINION

Anderson, J.

Appellants, the father, mother, sisters, and brothers of Clyde Regan, debased, brought this action in the circuit court of Marion county against appellee to recover damages for the death of the deceased, caused by the negligence of one Lee Stamps, alleged to have been appellee's logging woods foreman.

Appellee was engaged in the manufacture of veneer at its plant at Foxworth in this state. Ball Bros. was furnishing appellee part of the togs used in its business. Lee Stamps was the woods foreman in charge of the crew, and the deceased was a member thereof. A steam log skidder was used to assemble the logs. Stamps negligently directed the skidder to be tied to a faulty tree. In the operation of the skidder the tree was pulled down, falling on the deceased and resulting in his death.

The question of negligence is out of the way. Appellee concedes that the evidence was sufficient to make that an issue for the jury.

The question, and the only one, on this appeal is whether Stamps was the servant of appellee or the servant of Ball Bros. The trial court held that he was the servant of the latter and directed a verdict for appellee.

The following facts were established without dispute: Taylor was the vice-president and general manager of the appellee, a corporation, in full charge of the operation of its plant including the purchase of the logs. W. H. Turner owned the land, and timber on it, from which the logs were being taken. Conerly was the agent of Turner in charge of the land and the timber with authority to sell the timber. He sold such of it as was being used by appellee to Ball Bros. at $ 2 per thousand stumpage. Ball Bros. sold it to appellee, certain sizes at $ 7 per thousand and larger sizes at $ 8 per thousand delivered at appellee's mill, the $ 2 per thousand stumpage to be retained by appellee and paid to Turner, the balance to Ball Bros. The...