Siskin v. Johnson

• Court: Tennessee Supreme Court
• Writing for the Court: HALL, J.
• Citation: Siskin v. Johnson, 268 S.W. 630, 151 Tenn. 93 (Tenn. 1925)
• Decision Date: 31 January 1925
• Parties: SISKIN ET AL. v. JOHNSON.

268 S.W. 630

151 Tenn. 93

SISKIN ET AL. v. JOHNSON.

Supreme Court of Tennessee.

January 31, 1925

Appeal from Circuit Court, Hamilton County; Oscar Yarnell, Judge.

Action by George Johnson against R. H. Siskin and others. Judgment for plaintiff, and defendants appeal. Reversed, and suit dismissed.

HALL J.

This action was instituted in the circuit court of Hamilton county by George Johnson, by petition, against R. H. Siskin and Abe Siskin, doing business under the firm name of R. H. Siskin & Son, and also as R. H. Siskin Iron & Metal Company, to recover compensation for an injury sustained while in the employ of one H. C. Carter, who had been employed by defendants to transfer some heavy iron car wheels from a railroad car to the Jones Machine & Foundry Company.

The petition avers that, while in the car with other employees of defendants engaged in unloading car wheels, and while engaged in jacking up one of the wheels in order to get another wheel out from under it that it might be loaded onto the truck of H. C. Carter, his immediate employer, the jack slipped letting the car wheel down on the fore or index finger of the left hand of petitioner, injuring it to such an extent that it was necessary to amputate it below the second joint.

The petition averred that defendants were operating under the Workmen's Compensation Act at the time petitioner sustained the injury above described on January 8, 1923; that petitioner was earning, at the time of said injury, $12 per week, and that defendants were duly notified of said injury by registered letter on January 30, 1923.

Defendants answered the petition, denying liability for petitioner's injury.

The answer averred that defendants had contracted with one H. C Carter to unload certain cars of metal; that the said Carter agreed to unload said cars at so much per car, and that defendants would supply Carter with a workman to assist him but that said work should be under the control and direction of the said Carter; that petitioner, however, was never at any time in the employ of defendants, but was in the employ of Carter at the time he was injured; and that Carter, in unloading said car wheels and delivering them to the Jones Machine & Foundry Company, was acting in the capacity of an independent contractor.

Upon the hearing on an agreed statement of facts the circuit judge awarded petitioner a recovery for the sum of $280, it being 50 per cent. of his average weekly wage for the period of 35 weeks, and the costs of the case, from which judgment defendants appealed to this court, after their motion for a new trial had been overruled, and have assigned errors.

The statement of facts, upon which the case was tried, is as follows:

"George Johnson, the petitioner, was an employee of H. C. Carter, an independent contractor. That while he was in the employ of Carter he suffered, either through his negligence or otherwise, the loss of one forefinger. The accident did not happen on the premises of R. H. Siskin Iron & Metal Company, nor any other place over which they had control, but occurred while Carter's employee, Johnson, was transferring iron car wheels from the railroad station to the Jones Machine & Foundry Company. That defendants R. H. Siskin et al. did not know Johnson, did not employ him, and he was not subject to their control. That he was responsible only to H. C. Carter, the independent contractor. That in the contract between Siskin & Son, defendants, and Carter it was agreed that defendant Siskin would loan Carter an employee (but not Johnson, the petitioner), and which employee

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