Opinion
13198
July 10, 1931.
Before FEATHERSTONE. J., Orangeburg, 1930. Affirmed.
Action by H.H. Little and others in behalf of themselves and others against Edisto Hardwood Co. From a judgment for certain plaintiffs, defendant appeals.
The decree of the Circuit Judge, directed to be reported, was as follows:
This case comes before me upon exceptions to the master's report.
The defendant in the case is a corporation, a sawmill enterprise engaged in the business of manufacturing timber and logs into lumber and selling the same.
The plaintiffs were laborers who worked in the logging department of the defendant. They consisted of 131 persons in number. The plaintiff H.H. Little was the party who had charge of this logging department. All the other laborers were hired by the said Little and worked under his supervision.
The object of the suit on the part of the plaintiffs was to collect from the defendant the wages for their services for five weeks in 1928 — from November 10, 1928, to December 15, 1928. The action was brought under the statute, Section 5703 of Vol. 3 of the Code, which gives to the employees of mills and factories a lien on the output of such institutions for their wages.
The principal questions in the case are questions of fact. The principles of law governing the case are well settled, and about these there is little or no controversy. The pivotal question in the case is whether these plaintiffs (other than H.H. Little) should be paid by the defendant or H.H. Little for the services rendered. The record and testimony shows that the case arises out of the following facts and circumstances:
There was located along the South Edisto river in Orangeburg, Barnwell, and Aiken counties a lot of timber referred to as the Mulherin timber; this timber was acquired by the Palmetto Lumber Company which had a mill at Denmark; when this company acquired this timber, it found one H.J. McNeill there logging it for its former owners; the Palmetto Lumber Company thereupon engaged McNeill to log the timber for it at a stipulated price per thousand for delivery at its mill at Denmark; McNeill had an office at Springfield, about twenty-four miles from Denmark, and paid off his laborers at Springfield, and had no connection with the Palmetto Lumber Company, except to receive from it the stipulated price per thousand for the logs delivered; but McNeill broke down in his logging operations in the latter part of 1927, became unable to finance this logging work, his laborers quit, and his equipment and machinery were run down and inefficient; so McNeill quit, and the Palmetto Lumber Company hired McNeill's equipment and got one Rogers, a foreman of McNeill, to log this timber at its mill for a month or two, paying him a salary for his work; and then H.H. Little came along and the company made a contract with him to log this timber at its mill. In the meantime, however, the Palmetto Lumber Company had burned and the mill had been rebuilt at the edge of this timber, and about one mile from Springfield, under the name of the Edisto Hardwood Company, and it was this latter company that made the contract with H.H. Little. By this contract, it was claimed by the company, Little was to receive $9.00 per thousand for the timber delivered at the mill.
This contract was not in writing, and there is much conflict between Little and the officers of the said company as to its terms and when it was to go into effect. It seems to be conceded that, at the time Little took charge, the logging conditions were in a very bad state — the labor was disorganized, the timber scattered, and the logging equipment which Little was to use (McNeill's old outfit) was recognized to be inadequate; and, until these conditions were improved, the company agreed to take care of the pay roll of the logging department which Little was to be in charge of. The testimony is in great confusion as to how long this temporary arrangement was to last. Even the witnesses for the defendant itself do not agree on this point, the testimony of the different officers varying from two or three pay rolls to four or five months. Little contends that he was not to begin to work under his contract of $9.00 per thousand until it was mutually agreed between him and the company that the conditions warranted it. And, he contended, until that time arrived, the company was to take care of the pay rolls, and that was the arrangement under which he and the other plaintiffs were working during the five weeks in question. As a matter of fact, the company did take care of the pay rolls of the department from January until November 10, 1928, the date immediately proceeding the five weeks in question, a period of about ten months. Little furthermore says that the company never advised him that it intended to quit taking care of the pay rolls, until December 8, 1928, which was the end of the fourth week of the five in question. And it is a very significant fact that the company did on that date write a letter to Little to that effect.
As above stated, the defendant company paid the laborers who worked in the logging department under the supervision of Mr. Little, from January to November 10, 1928. These laborers were organized into squads, skidder squad, railroad squad, etc. Each squad had its foreman who would keep the time of the men who worked under him. This time would be handed in by the foreman to a man at the company's office, who would make up the pay roll therefrom, get the money from the company to pay these employees, and pay them once every two weeks. This man who kept the time and made up the pay roll and paid the men worked at the company's store. It appeared that half of this man's salary was charged to Little, but the employees of this logging department did not know anything about this. To them this man appeared to be the company's paymaster of the logging department. These laborers were paid at the company's office, and very often their pay was put in envelopes with the company's name printed on same. They traded at the company's store which was kept by the man who paid them off, and they were given metal trade checks of the company, and on pay days the amount of the trade at the store was deducted from their pay. And all of the other laborers for the company, the mill crew for example, were treated in the same way by the company. When the laborers of this department, who were the plaintiffs in this case, entered upon the service of the five weeks in question, they received no notice from any source that the company would not pay them for these five weeks. They had every reason to believe that the company would continue to pay them just as it had been doing for the ten preceding months, during which time Mr. Little had been there. At the end of the first two weeks of these five, these laborers went to the company's office for their money as usual. They were told by Mr. Huestis, the man who usually paid them off, that they would not be paid off that day. This resulted in much confusion and wrangling among the laborers. Mr. Little went into the office to consult with Mr. Brinkley, the secretary-treasurer of the company, about paying off these men. They disagree as to what occurred at this conference. Mr. Little says that Mr. Brinkley told him to go and tell the men to go back to work and the company would pay them; Mr. Brinkley denies that he told Mr. Little that, but he admits that he told him to go out and tell the men anything that he wanted to tell them. Mr. Little did go out and tell the men to go back to work and the company would pay them. Thereupon the men returned to work and worked for three weeks longer, which made five weeks in all. They were never paid for these five weeks, and this is the time that they are suing for in this case.
The case was referred to the Master to take the testimony and report upon the issues of law and fact. He held a number of hearings in the case and took the testimony of 78 witnesses which covered 223 typewritten pages. Then the Master filed an exhaustive report covering twelve pages in typewriting. The report is a well-considered document and goes thoroughly into all the essential features of the case. The Master finds that all of the plaintiffs named in the complaint, except H.H. Little and two others, are entitled to collect the pay for their services from the defendant. And the Master states the amount which each plaintiff is entitled to receive.
The defendant filed exceptions to the Master's report, and these exceptions were heard by me in argument and discussion which lasted for several hours. The principal question raised by these exceptions is that above stated, as being the vital question in the case, namely, whether Little was an independent contractor, or an agent and employee of the company, in hiring the other plaintiffs to work in the logging department of the company, and whether the company ratified his acts and conduct as agent in hiring these men, and whether the company is estopped by its conduct from claiming that Little was not its agent and employee in this matter.
The testimony on this point is in great conflict. A great many witnesses testified in the case, seventy-eight in number, and most of them touch on this point. The able and efficient Master had the opportunity of seeing these witnesses on the stand and hearing their testimony at first hand, and is therefore in a better position to decide that question of fact than this Court is. I have read very patiently and carefully through the great mass of testimony in the case, and there is ample testimony to sustain the Master on that point, and therefore this Court is not disposed to disturb the finding of fact by the Master thereon.
It may be true that, as between Little and the company, the relationship of independent contractor existed, but, even though as between these two such relationship did exist that is not decisive of the case. Concede that relationship for the sake of argument, so far as it affects those two, yet, when all the surroundings, facts, and circumstances are considered in the case, we have, I think, beyond question, a case in which these plaintiffs, most of them ignorant laborers, were misled (probably unintentionally), by the conduct of the company, into believing that, as between them and Little and the company. Little was the superintendent of the logging department of the company with authority to hire the laborers of that department, for whose pay the company was responsible.
It seems to me that this conclusion is inevitable from these facts, among others, which clearly appear from the testimony: The manner in which these employees were paid, the time being turned into a man who appeared to these employees to be working for the company as bookkeeper and paymaster; this man, Mr. Huestis, would make up the pay roll from this time, and take it to the secretary and treasurer of the company, who would furnish the money to pay off these employees; that they would be paid off by this man at the company's office and store every two weeks; very often the envelopes which contained their money would have printed on them the name "Edisto Hardwood Company"; these employees were permitted and invited to trade at the company's store and were given metal trade checks of the company, and the amount of their trade at the store would be deducted on pay days by this man who paid them off; the company of course was making a profit from its conduct in carrying on this trade with these employees at its store; when the men were said to have struck at the end of the first two weeks of the five in question, that was an occasion which demanded honesty, frankness, and fair dealing on the part of the company, and if its officers permitted or authorized Little to go out and promise these men that if they would go back to work the company would pay them, or if the company acquiesced in the conduct of Little in doing this, or remained silent while it knew or should have known that he was doing this, such conduct on its part does not commend itself to the Court, and the company ought not now undertake to deny the authority of Little to make the promise to these men that he did; and, also, it is conceded on all sides that the company did agree to take care of the pay roll of this department until the logging conditions were improved, and, this being true, it behooved the company to be careful to not let these employees work under the belief that the company would pay them if the company did not intend to do so; and it is a very significant fact that the company did not notify Little in writing until December 8th, the end of the fourth week of the fifth, that it would not take care of the pay rolls any longer; and the plaintiffs were not even notified of this action on the part of the company.
In this connection, the case of Carolina Hardware Co., et al. v. Raleigh Banking Trust Co., 86 S.E., 706, 708, a North Carolina case decided in 1915, is very apropos. In this case the defendant hired a contractor to construct a bank building in the city of Raleigh for some $25,000.00. The contractor broke down in his work and could not complete the job (just as McNeill did). Thereupon the defendant, in the interest of having the work completed according to the original plans by a man who understood them, agreed with the contractor that, if he would go on and complete the work, the defendant would pay his bills for material and labor. Thereafter the plaintiff furnished material to the contractor which was used in this building and demanded pay therefor from the defendant. The defendant refused to pay the plaintiff and claimed that, in ordering this material, the contractor was not the agent of the defendant, but an independent contractor. On this point the North Carolina Court said:
"The only other assignment of error we deem it necessary to consider goes to the very heart of the controversy; that the Court erred in finding as a fact that the defendant trust company ascertained in August, 1912, that its contractor was insolvent, and that the said defendant agreed with its contractors Carr Co. that the trust company would pay for all materials and labor thereafter required to complete said building in accordance with the plans and specifications. * * * The evidence reported by the referee in our opinion is sufficient to justify his Honor in finding from that evidence that, when the trust company saw that its building would not be completed and that its contractor had broken down, its officers authorized the contractor to purchase the necessary material to complete the building and agreed to pay for it.
"It is not necessary that this contract should have been made directly with these plaintiffs. If the facts be true, as reported by the referee and found by his Honor, then Carr was constituted agent of the trust company and duly authorized to purchase the material necessary to complete the building. The benefits to accrue to the trust company were sufficient consideration to support such new agreement. When that agreement was made, the trust company undertook to complete the building itself. Carr then became its agent and not an independent contractor.
"The material furnished by these plaintiffs became the direct obligations of the trust company, and not those of the original contractor. It is immaterial whether the plaintiffs knew of the new agreement made in August, 1912, although it is found that they had knowledge of it. The liability of the agent is not exclusive. Although the plaintiffs extended credit to Carr in ignorance of the fact that he was acting for the trust company, the plaintiffs had the right to hold the undisclosed principal liable when discovered. It is well settled that an undisclosed principal is bound by executory simple contracts made by the agent, and by the acts of the agent done in relation thereto, within the scope of his authority and in the course of his employment" — citing authorities.
By Exception 6, the point is raised that certain plaintiffs, not named in the exception, should not be allowed to recover any judgment against the defendant, because they did not come into the case and prove their claims. But I find from the testimony that all the plaintiffs authorized this suit to be brought in their behalf, and the amount due each plaintiff was amply proved by the testimony. The pay roll for the five weeks in question was put in evidence, and it was testified to by the person who made out this pay roll and who kept it that it was correct. And there was other testimony in the case which amply warranted the finding of the Master that the plaintiffs named in his report were entitled to receive the amount found by him in their favor.
I therefore find that the exceptions to the Master's report in this case should be overruled and the said report should be confirmed in all particulars.
And it is so ordered, adjudged, and decreed.
Messrs. J. Wesley Crum and W.C. Wolfe, for appellant, cite: Action on express contract cannot be maintained upon proof of implied contract or quantum meruit: 133 S.C. 202; 84 S.C. 73; 48 S.C. 298; 16 S.C. 192.
Messrs. Brantley Zeigler, for respondent, cite: Finding of Master concurred in by Circuit Judge will be sustained: 45 S.C. 57; 124 S.C. 554; 117 S.E., 222; 4 C.J., 894. Question of fact: 70 S.C. 304; 4 C.J., 645; 34 S.C. 496; 51 S.C. 560. What is sufficient proof: 142 S.C. 70; 140 S.E., 234.
July 10, 1931. The opinion of the Court was delivered by
The decree of his Honor, Circuit Judge Featherstone, in this cause is entirely satisfactory to this Court. It will be reported, and is affirmed.
MR. JUSTICE STABLER, and MR. ACTING ASSOCIATE JUSTICE GRAYDON concur.
MR. JUSTICE CARTER (for modifying): This action, as is indicated by the title, is a suit by H.H. Little et al., in behalf of themselves and all other alleged employees of the Edisto Hardwood Company, similarly situated, to compel the defendant to pay them certain alleged wages, in the aggregate sum of $3,999.85, based upon an alleged contract of employment by the defendant. It will be observed, by reference to the pleadings, that the suit is not a single cause of action in which many are alleged to have an interest, but it is a case in which there are as many causes of action as there are plaintiffs, and there are about one hundred and forty plaintiffs. It is the contention of so many of the plaintiffs as testified in the case that, while they were employed by their co-plaintiff H.H. Little, it was their understanding that Little was acting as the defendant's agent, and that the defendant would be responsible to them for the amount they were entitled to for their labor; whereas the defendant contended that these parties were employed by H.H. Little as an independent contractor, and that it was in no way responsible to them or under any obligation to pay them for their alleged labor. In accordance with the findings of the Master, to whom the case was referred, concurred in by the Circuit Judge, the plaintiffs, H.H. Little, G.C. Sanders, and Harry Henderson were not allowed to recover any amount against the defendant. In effect, the lower Court held, based on the testimony in the case, that, so far as H. H. Little was concerned, it was clear that he was an independent contractor and was not entitled to recover anything in this action; and, also, he was not on the pay roll of the employees of the logging department. The lower Court also held that the plaintiffs G.C. Sanders and Harry Henderson had notice that their coplaintiff H.H. Little, who employed them, was an independent contractor, and that therefore they should look to him for compensation for their services and not to the defendant. But the lower Court allowed judgment for each of the other plaintiffs for the full amount of their respective claims. The following named plaintiffs did not testify in the case, but were given judgment against the defendant as follows:
Bonds, Robert ........................................ $ 12.00 Bonds, Roy ............................................ 21.90 Beckton, Henry ........................................ 18.50 Jake Beckton .......................................... 87.20 Herbert Brown ......................................... 1.75 Brown, E. ............................................. 4.50 Bishop, C.S. .......................................... 14.10 Brown, Ben ............................................ 49.75 Brown, Peter .......................................... 25.85 Chisom, Alex .......................................... 23.25 Chavis, Curtis ........................................ 19.50 Cummings, York ........................................ 11.50 Croon, J.N. ........................................... 17.55 Clark, Williams ....................................... 1.50 Clark, Jesse .......................................... 8.00 Cozel, Joe ............................................ 8.75 Dunbar, Isadore ....................................... 18.15 Davis, L.D. ........................................... 9.25 Donald, Carroll ....................................... 1.75 Evans, Theodore ....................................... 27.75 Ford, Ed .............................................. 50.00 Fisher, W. ............................................ 63.65 Funny, Henry .......................................... 36.20 George, J ............................................. 16.10 Grant, Lee Myer ....................................... 21.10 Hamilton, Jack ........................................ 13.55 Hilliard, Carlisle .................................... .75 Hammonds, E.E. ........................................ 121.20 Hampton, Will ......................................... 10.50 Harley, Theo .......................................... 33.00 Harley, B.T. .......................................... 17.50 Henderson, John ....................................... 3.65 Henderson, Harvey ..................................... Hayes, Luther ......................................... 7.00 Henderson, Will ....................................... 7.55 Isaac, Sam ............................................ 8.00 Jamison, Rollie ...................................... $ 49.00 Jamison, Peter ....................................... 47.25 Jordan, Cliff ........................................ 10.20 Johnston, Preston .................................... 19.25 Jones, Ellis ......................................... 17.65 Jones, Kum ........................................... Johnson, Abraham ..................................... 8.00 Kearse, Henry ........................................ 31.30 Kuett, Loyd .......................................... 26.60 McKellery, Dan ....................................... 5.00 Mack, Paul ........................................... 9.10 Martin, Thos ......................................... 7.35 Murray, Carl ......................................... 12.00 Odom, E.T. ........................................... 87.00 Osberry, J.C. ........................................ 12.00 Pringle, Ezekial ..................................... 52.00 Reed, Ed ............................................. 2.10 Reed, J.R. ........................................... 19.00 Rumph, Thos .......................................... 6.40 Summers, D. .......................................... 40.50 Stroman, Odis ........................................ 20.65 Shuler, Wash ......................................... 37.25 Stevens, Harry ....................................... 8.25 Stroman, Lynel ....................................... 3.86 Slater, Ledger ....................................... 12.45 Stroman, Wesley ...................................... 18.50 Smoak, Jeff .......................................... 7.00 Samles, Geo .......................................... 7.40 Stroman, Lane ........................................ 3.55 Termant, Ubee ........................................ 14.00 Turner, Charles ...................................... 3.50 Tarrant, Timothy ..................................... 2.50 Tarrant, Joe ......................................... 6.00 Williams, Sam ........................................ 9.80 Way, Jimmy ........................................... .10 _________ $1,408.76As stated the above-named plaintiffs did not testify in the case, and, so far as the record before this Court discloses, there is no testimony that these plaintiffs did not know that Little was an independent contractor, and that they were working for Little and not for the defendant. According to my view, in order for these plaintiffs to recover against the defendant, it was necessary to show that they were working for the defendant. As I view the record, all of the other plaintiffs who were given judgment against the defendant offered testimony to show that they were working for the defendant and had no notice that Little, who employed them, was an independent contractor. The Court, having found against Little, in effect, it appears, held that he was an independent contractor, but because of the conduct of the defendant in misleading the plaintiffs and thereby causing them to believe that they were working for the defendant, and that the defendant would pay them for their services, allowed judgment against it. But the plaintiffs, whose names we have given above, and for whom judgment was given, do not come within that class. They did not testify in the case and offered no testimony tending to show that they were working for the defendant, or were, in any way, misled by the defendant's conduct. In fact, so far as I have been able to ascertain from the transcript, these plaintiffs, above named, took no part in the case and manifested no interest therein. As stated, the suit is not a single cause of action in which many parties have an interest, but it consists of as many causes of action as there are plaintiffs. It is true, no question was raised along this line in the lower Court, but the failure to raise such question did not affect the rules as to the requirement of proof necessary to give judgment against the defendant. As I see it, there was no evidence upon which to base judgment in favor of the plaintiffs which I have named above. While there was testimony tending to show that these plaintiffs, which we have named, labored at the instance of their coplaintiff, Little, and that they did not receive pay for their labor, we fail to find any proof that they acted at the instance of the defendant, or that they were, in any way, misled by the conduct of the defendant, and, further, we find no proof that they did not know that Little was an independent contractor. The proof which enabled the other parties in the case to recover judgment against the defendant is lacking as to these plaintiffs.
I am therefore of the opinion that the judgment should be reversed as to the plaintiffs which I have named above, and I stand for modification of the judgment of the lower Court in accordance with the views herein expressed.
MR. JUSTICE COTHRAN concurs.