W. H. Moore Lumber Co. v. Starrett

• Decision Date: 18 January 1926
• Docket Number: 102
• Citation: 279 S.W. 4,170 Ark. 92
• Parties: W. H. MOORE LUMBER COMPANY v. STARRETT
• Court: Arkansas Supreme Court

279 S.W. 4

170 Ark. 92

W. H. MOORE LUMBER COMPANY v. STARRETT

No. 102

Supreme Court of Arkansas

January 18, 1926

Appeal from Hot Spring Circuit Court; Thomas E. Toler, Judge reversed.

Judgment reversed, and cause dismissed.

Murphy & Wood, for appellant.

D. D Glover and H. B. Means, for appellee.

OPINION

WOOD J.

On the 24th of January, 1924, Sam Starrett filed his complaint in the Hot Spring Circuit Court, in which the W. H. Moore Lumber Company (hereafter called company) and one W. M. Fleetwood were named as defendants. Starrett alleged in substance that the company was a corporation engaged in the manufacture of lumber, one of its mills being situated in Hot Spring County, and that Fleetwood was in charge of its sawmill department and running the same for the company in cutting timber at a stipulated price per thousand feet; that on the 22d day of July, 1922, the plaintiff was in the employ of the defendants, and, under the orders and directions of his foreman, was operating an edger; that the edger and machinery being run by the defendant was unsafe and dangerous in that it would permit the lumber, while being operated through it, to kick back in the direction of the one operating the same; that the key that held the edger saw upon the shaft was defective and unsafe, and would permit the saw, while it was in operation, to move from side to side and come in contact with the lumber, and because of such defect the lumber would be thrown back from the side from which it was being fed into the edger; that, while the plaintiff was in the discharge of his duty, one of the defendants' other employees negligently and carelessly, in handling a plank coming through the edger, caused the plank to come in contact with the saw which caused the piece of lumber to be kicked back through the rollers, striking the plaintiff in the right side and hip, and knocking him into a hole which had been negligently and carelessly left open by the defendants without a railing around the same; that, by reason of the failure of the defendants to exercise ordinary care to provide him with a safe place to work and safe machinery with which to do his work, and the negligence of his fellow-servant in handling the plank, he was severely injured, to his damage in the sum of $ 5,000, for which he prayed judgment.

The company answered and, among other things, denied that it was engaged in the operation of a sawmill at the time of the alleged injury to the plaintiff, or engaged in the manufacture of lumber or other products as alleged in the complaint; the company denied that it had any control or management of said sawmill at that time, but set up that the mill at the time of the alleged injury to the plaintiff was being operated by one W. M. Fleetwood, who was in full charge thereof, and running it on his own account under lease from the company. The answer denied specifically all allegations of negligence, and also the allegations as to appellant's injury set forth in the complaint, and set up the affirmative defenses of contributory negligence and assumed risk.

Fleetwood, in his separate answer, admitted that he was in charge of the sawmill department of the mill and running the same for the company in cutting its timber into lumber for a stipulated price per thousand feet. He denied that the plaintiff was in his employ on July 22, 1922, and denied all the allegations of the complaint as to negligence and injury to the plaintiff, and set up the affirmative defenses of contributory negligence and assumed risk.

The evidence was heard on the issues raised by the pleadings, and the court submitted these issues under the evidence upon written and oral instructions. In its oral instructions it told the jury that it was for the jury to determine whether the defendants were both liable or whether only one of them was liable, and which one, and, if the jury found that both were not liable, but that one was liable, they should return their verdict accordingly; and that if they found that the defendants were neither liable individually or jointly, they should return a verdict in favor of the defendants. The jury returned the following verdict: "We, the jury, find for the plaintiff solely against the defendant, W. H. Moore Lumber Company, in the sum of $ 1,250 and costs." Judgment was entered against the company in that sum, from which it prosecutes this appeal.

The conclusion we have reached after an examination of the entire record in the case makes it unnecessary to set forth the testimony and instructions of the court bearing upon the issues of negligence, contributory negligence and assumed risk.

On the 1st of September, 1921, the W. H. Moore Lumber Company entered into a written contract with W. M. Fleetwood. The contract provided in substance that the company was the owner of 1600 acres of timber lands in Hot Spring County, Arkansas, and also was the owner of a sawmill in that county; that it was the intention of the parties to enter into a contract whereby Fleetwood would take over the operation of the mill for the logging and manufacture of timber into lumber. It was agreed that the company would furnish Fleetwood the mill and all its appurtenances for the purpose mentioned, and that Fleetwood would take possession and operate the same for that purpose. The timber was to be manufactured into merchantable lumber by Fleetwood, which was to be handled by him in a certain manner as specified in the contract, and when so handled it was to be received by the company on the mill yard. For the purpose of securing logs to be manufactured into lumber, Fleetwood was to cut the merchantable timber on the lands belonging to the company and all other merchantable timber which the company might acquire in that locality, and he was to cut the trees and saw the logs and preserve the same according to certain specifications set forth in the contract. In consideration of Fleetwood's performing the contract on his part, the company agreed to pay him on a basis of $ 10 per thousand feet, log scale, for all the lumber he manufactured. The logs were to be scaled by a person to be mutually agreed upon by the parties according to the Doyle scale stick. Fleetwood agreed, in consideration of the payments thus to be made him by the company, that he would "pay all costs of labor, and maintenance and repairs on the mill, and all other expenses entering into the logging and manufacture of said timber into lumber" and to save the company "harmless as against all claims for labor, maintenance or otherwise, entering into the manufacture of said lumber." Fleetwood agreed that he would endeavor to manufacture the lumber in consistent average amounts not less than 100,000 feet per month, and not more than 200,000 feet, unless larger amounts were requested by the company, and, if so, then he would endeavor to supply the amounts desired. Fleetwood also agreed to purchase of the company certain teams, wagons and harness that were then being used at the mill, for which he agreed to pay the sum of $ 2,000, by permitting the company to deduct the sum of $ 1 per each thousand feet of log scale at each settlement period until the purchase price of $ 2,000 was paid.

The company retained a lien on the teams, wagons and harness until the purchase price was paid. Fleetwood had the privilege at any time to pay any balance of the purchase money in cash, and thereupon to obtain an absolute ownership of the teams, wagons and harness, and, until the purchase money was fully paid, Fleetwood agreed that he would not dispose of this property or remove the same from Hot Spring County without the consent of the company. It was agreed that the compensation specified in the contract to be paid Fleetwood by the company was based upon the then prevailing prices of labor in the locality of the mill and timber, and if at any time prior to the fulfillment of the contract there should be a material change in the price of labor an adjustment of the compensation to be paid Fleetwood by the company should then be agreed upon in accordance with the change, and if the parties could not agree, the matter should be submitted to arbitration, and the decision of the arbitrators should be binding upon both parties.

It was further agreed that if the mill should be destroyed or badly damaged by fire or tornado during the life of the contract, so that it could not be used, then the company should have the option to rebuild or repair or declare the contract ended. If the company exercised the option to rebuild or repair, then such option would have to be exercised in a reasonably prompt manner. By its terms the contract went into operation on the 1st day of September, 1921.

Both Fleetwood and Moore testified that at the time of the injury to the appellee the mill was being operated in the manufacture of timber into lumber by Fleetwood under a contract; that the appellant had nothing whatever to do with the operation of the mill at that time. According to Fleetwood's testimony, after the appellee was injured witness took him to St. Joseph's Hospital, in Hot Springs, and paid the doctor's bill for his treatment, as was his custom for his employees. There was one planing mill in connection with the plant, but the witness didn't have any control over that. It was in charge of Moore. The two mills were connected by a tramway. Under the contract witness was to receive $ 10 per thousand feet for the timber cut into lumber, log scale, and witness paid the expenses of operating the sawmill out of that. Moore gave instructions to witness about how the lumber should be cut, and witness obeyed Moore's orders in this respect. Witness was running a commissary at the plant, and the goods were shipped in the name of W. H....