Waters v. Greenleap Johnson Lumber Co

• Citation: 115 N.C. 648,20 S.E. 718
• Court: United States State Supreme Court of North Carolina
• Decision Date: 11 December 1894
• Parties: WATERS . v. GREENLEAP JOHNSON LUMBER CO.

20 S.E. 718

115 N.C. 648

WATERS .

v.GREENLEAP JOHNSON LUMBER CO.

Supreme Court of North Carolina.

Dec. 11, 1894.

Independent Contractor—What Constitutes— Construction of Lumber Road — Negligence —Injury to Land—Malicious Trespass—Right of Way Agreement—Interpretation.

1. Where one was engaged in the construction of a railroad for a lumber company under contract, and it does not appear how he was paid, or whether it devolved on him exclusively to furnish material for the work, and pay the hands in its accomplishment, or whether the company exercised control over it, the fact that it supervised the cutting of timber by him on the land through which the road was to pass renders him its servant in law.

2. In a contract of sale of standing timber to a person, "with the right for his train, tramroad, wagons, and employes to enter on said land and remove said timber, " the word "train" must be deemed to refer to a railroad train.

3. The contract right to enter on land to remove certain timber by a railroad necessarily implies the right to build the railroad on the land, and to cut and remove such timber as is reasonably necessary in clearing a right of way.

4. Whether a way 21 feet wide is necessary to the construction of a road on which to operate lumber trains is a question for the jury, under proper instructions.

5. The grant of a right to construct a railway through timber land does not authorize the cutting of cross-ties elsewhere than on the right of way.

6. In the construction of roads for the transportation of timber purchased from plaintiff by defendant, it is negligence for the latter to fill in drain ditches maintained by plaintiff, instead of bridging over them.

7. In an action to recover damages resulting from negligence in the construction of defendant's railroad, in obstructing ditches and destroying fences, the measure of damages is the cost of removing those obstructions and replacing the fences.

8. Evidence that the contractor engaged to construct defendant's railway, and its agent to locate the right of way through timber land belonging to plaintiff, while engaged in its location, made inquiries as to plaintiff's means, and ability to fight a lawsuit, and that, during the construction of the road, plaintiff forbade such contractor to cut certain timber, and was told by him that he was working for defendant, that it had a charter, and that he must have cross-ties, and that plaintiff ought to see defendant as to cutting the timber, does not show such malice or wantonness in the construction of its road by defendant as to make it liable to plaintiff in punitive damages.

9. In an action for malicious trespass, the question whether there is sufficient evidence to entitle plaintiff to punitive damages is one for the court, and not the jury.

Appeal from superior court, Martin county; Bynum, Judge.

Action by D. T. Waters against the Green-leaf Johnson Lumber Company to recover damages for breach of a contract of sale of timber, and for defendant's negligence and malicious trespass in the construction of its railroad under a right of way granted in such contract. Defendant's relation to the contract in question was that of assignee of one Dennis Simmons, an original party thereto with plaintiff. There was judgment for plaintiff, and defendant appeals. Reversed.

Moore & Stubbs, for appellant.

W. B. Rodman, for appellee.

AVERY, J. Whatever authority may have been given the defendant by the legislature, in its charter, it was not acting or purporting to act under the right of condemnation for public purposes, but by virtue of a contract between the plaintiff and Dennis Simmons, the benefit of which had been assigned by Simmons to the defendant, in which the plaintiff had sold and conveyed all of the "pine and poplar timber on said land, which would measure 12 inches in diameter 16 feet from the ground, with the right for his train, tramroad, wagons, and employes to enter on said land and remove said timber." No copy of the contract was sent up, and we must therefore construe the foregoing portion of it, embodied in the statement of the case on appeal, and purporting to be its only material provision.

Claiming authority to do so under this contract, the defendant company entered into an agreement with one Parker, whereby Parker was to construct a railroad, "cut the timber on the land through which said road, if extended for ten miles, would run, and deliver the said timber to said company at the railroad." During the months of November and December, 1891, and January and February, 1892, Parker accordingly built a railroad over plaintiff's said land for a distance of 1, 952 yards, and cleared and occupied a roadbed 21 feet wide along the whole line, which passed through uninclosed woodland, except at one point, where the fence or inclosed woodland was set back by defendant to clear the way for the track. The other material testimony sent up as a part of the statement is as follows: "It was in evidence that the timber on plaintiff's land was cut by Roberson under contract with Parker, and was paid for at so much per thousand feet, Roberson employing and paying his hands. There was evidence tending to show that Parker was instructed by defendant company to cut the timber as they had bought it, and that they had informed him what they had bought; that plaintiff had rented the cleared land on said tract to a tenant, and made advances to the tenant to enable him to cultivate the land, which were, according to said rental contract, to be paid out of the crop raised thereon; that at the time of building the road there had been enough cotton gathered on the land to pay the rent, but not enough to pay rent and advances; but there was enough in the field, together with what had been gathered, to pay both rent and advances."

The first contention of the defendant company was that Parker was an independent contractor, and that the corporation could not be made to respond in damages for any unlawful act of his, committed in carrying out his contract. A person may become a trespasser by doing, himself, a lawful act in an unlawful manner, to the injury of another, because therestriction upon his right to exercise dominion over his own property is that he is not allowed to so use it as to injure another. Where he employs another to do what is unlawful, or to act or wort for or serve him in the performance of a lawful act in an unlawful manner, in either case such employer is liable for resulting injury to third persons, whether such employes or servants "are paid by the job, or by the year or the day, " and whether the master "be present, or absent." Wiswall v. Brinson, 10 Ired. 554. Where the relation of servant or agent is once shown to exist, the master or principal becomes, ipso facto, liable for any trespass committed in the course of his employment or the scope of his agency by the person acting for him, to the same extent that he would have been answerable, had the wrong been done by him in his own proper person. Does the testimony, in any phase of it, tend to show that Parker, who committed the trespass, was not the servant or agent of the defendant company, but an independent contractor? If so, it was error to instruct the jury that, if they believed the evidence, he was the agent of the company. Had the entry upon the land been made in the exercise of the right of eminent domain, the company would have been answerable, not only for the unlawful acts of its servants, done in the course of their employment or by its consent, but for injuries done by such contractor, when exercising for the company some chartered privilege or...