Young v. Fosburg Lumber Co.

• Decision Date: 04 March 1908
• Parties: YOUNG v. FOSBURG LUMBER CO.
• Court: North Carolina Supreme Court

60 S.E. 654

147 N.C. 26

YOUNG v. FOSBURG LUMBER CO.

Supreme Court of North Carolina

March 4, 1908

Appeal from Superior Court, Halifax County; Lyon, Judge.

Action by Rena Young, by her next friend, against the Fosburg Lumber Company. Judgment for plaintiff, and defendant appeals. Reversed, and new trial granted.

The defendant company, being the owner of standing timber on the lands described in the pleadings, entered into a contract in writing with W. T. Ferrell by which he was to cut and remove the trees to the railroad. Defendant company agreed to furnish Ferrell one locomotive, logging cars, horses harness, and such light rails as were necessary, and to pay him $3.50 per 1,000 for all timber "logged." The contract provided that Ferrell was "to begin cutting and getting out the said timber within 30 days, and loading same on Seaboard cars, and the said W. T. Ferrell shall have the full and complete control over the cutting and getting out of said timber, and the loading, hauling, and shipping the same and the Fosburg Lumber Company shall have no control whatever over the cutting, logging, hauling, shipping, and loading the said timber, and the said W. T. Ferrell shall do said work in a good and workmanlike manner as an independent contractor." It was further provided that, where the timber was cut, or, if the contract should sooner cease, by consent, the property furnished by the company should be returned by Ferrell in good order, etc. The contract bears date February 11, 1895. Ferrell began cutting the timber on a portion of the land a short time thereafter. William Young father of the plaintiff, a child about nine years of age lived with his family in a house situated in a small clearing on the land upon which the trees were being cut on August 8, 1905. Running from the house, a part of the way through the woods, was a small footpath used by Young's family for going to a spring about 150 yards distant for the purpose of getting water for the use of the family. On the morning of August 8, 1905, the mother of plaintiff sent her, together with two other small children, to the spring for water. The hands were sawing trees in the woods near the path. As the children were returning from the spring a pine tree, sawed by the hands, fell; the top, or branches, falling across the path, and injuring the plaintiff. There was evidence tending to show the distance of the tree from the path, the character of the undergrowth, and opportunity for a person standing at the tree to see children along the path. There was also evidence tending to show that the hands knew of the location of the path, the spring, Young's house, and that his family got water from the spring. The testimony was, in some respects, conflicting. There was also evidence tending to show that the presence of the hands was known to the mother of plaintiff, etc.

Defendant introduced the contract under objection by plaintiff. Ferrell had been in the employment of defendant company some two or three years prior to the date of the contract, engaged in cutting timber on other lands. Ferrell testified that he was cutting the timber "under the contract"; that defendant company had no control over him. There was evidence on the part of plaintiff that at the end of each month the pay roll was made out and sent to defendant company at Norfolk, and the money placed in envelopes for each employé and sent to Ferrell. He testified in regard to this matter that he sent the company in Norfolk the pay roll of his hands, together with the number and size of the logs; that the company sent the amount due him in envelopes containing the amounts due the hands for his convenience. He says: "I got them to put it up [the money] in tickets for me. I asked them to do this as a matter of convenience. I did not have the time. There was only two of us there. I attended to the woods, and Mr. Vaughan to the desk, and they could get the change down there, and make it better than we. They paid me in checks, or money, whenever there was any balance due me, at $3.50 per 1,000." The commissary belonged to him, and the hands were employed by him. The team, cars, track, etc., belonged to defendant company, and were used by Ferrell under the terms of the contract. The hands who were cutting in the woods at the time plaintiff was injured testified that they were hired by Ferrell. The plaintiff introduced Vaughan, who was helping Ferrell. He says that on August 8, 1905, he was working for Ferrell, and was paid by him. He was originally employed by defendant company. His testimony is not very clear as to the manner of his employment, that is, with whom he made the contract. He testified that the pay roll was made up, signed by Ferrell, and sent to defendant company, who sent the money in envelopes containing the amount due each hand. Plaintiff sued by her next friend, alleging that defendant company by its servants was cutting the timber, and negligently cut the tree which injured her, whereby she sustained damage, etc. Defendant denied that it was engaged in cutting the timber, or that it was in any respect negligent, etc.

The defendant contended that Ferrell was an independent contractor, and was cutting the timber under the contract put in evidence. The following issue was submitted to the jury: "Was plaintiff, Rena Young, injured by the negligence of defendant, as alleged?" The jury answered "Yes," and assessed her damage at $1,350. Defendant, among other instructions, requested the court to instruct the jury "that if they shall find from the evidence that the tree which fell upon and hurt the plaintiff was cut down by employés of W. T. Ferrell, and that said Ferrell was getting out the timber of the defendant company under the contract put in evidence (Exhibit B), then he would be an independent contractor, and the defendant company would not be responsible for the acts of his employés, and you would therefore answer the first issue 'No."' His honor refused to give said instruction as asked, but struck out the words therein "then he would be" and inserted in lieu thereof the word "as," and gave said instruction as so changed. To his refusal to give said instruction as asked, and to said alteration of same, the defendant excepts. "That if the jury shall find from the evidence that W. T. Ferrell was getting out defendant's timber from the tract of land whereon plaintiff's father and mother lived at the time plaintiff was hurt, under the contract put in evidence (Exhibit B), they should answer the first issue 'No."' His honor gave said instruction, with the following modification: "Provided you find that he was an independent contractor, and that defendant had no control or direction over him, and in passing on that question you will take into consideration the evidence bearing on this question," and testimony. The defendant excepted to the failure of his honor to give said instruction as prayed, and to said qualification of same.

There are other exceptions in the record, not necessary in view of the opinion of the court to be noted. From a judgment upon the verdict, defendant appealed.

Clark, C.J., and Hoke, J., dissenting.

Day, Bell, Dunn & Murray, Allen, Shepherd & Shepherd, and E. L. Travis, for appellant.

S. G. Daniel, W. E. Daniel, and Claude Kitchin, for appellee.

CONNOR J.

Was Ferrell, by the terms of the written contract made between defendant and himself, a servant of defendant, employed to hire hands, and superintend the work of cutting, hauling, and loading the trees, or was he an independent contractor? The answer to this question depends primarily upon the construction of the written contract. Defendant requested his honor to construe the contract and instruct the jury, as a matter of law, that Ferrell was an independent contractor submitting to them the question whether he was working under the contract. His honor left the question whether Ferrell was an independent contractor to the jury. In one aspect of the question this was error. The construction of the language of the contract, being free from ambiguity, was for the court. Assuming that the contract was made in good faith, and was not a mere colorable device, resorted to for the purpose of avoiding responsibility for Ferrell's acts, we are of the opinion that it constituted Ferrell an independent contractor. "An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified." Pollock, Torts, 78; Barrows on Neg. 160. Mr. Justice Walker, in Craft v. Lumber Co., 132 N.C. 151, 43 S.E. 597, says: "When the contract is for something that may be lawfully done, and it is proper in its terms, and there has been no negligence in selecting a suitable person in respect to it, and no general control is reserved either in respect to the...