Opinion
No. 32686.
May 10, 1937.
MASTER AND SERVANT.
Manufacturer of veneer held not the "master" of logging woods foreman so as to be liable for death of member of logging crew resulting from alleged negligence of foreman, where foreman was employed by partnership furnishing logs to manufacturer under contract, which, though general manager of manufacturer sometimes made suggestions concerning work, gave manufacturer no right to exercise any control over manner and means of doing the work.
APPEAL from circuit court of Marion county. HON. HARVEY McGEHEE, Judge.
Henry Mounger and Hall Hall, all of Columbia, for appellants.
There was clearly an issue for determination by a jury on the question of negligence causing the death of plaintiffs' intestate.
New Deemer Mfg. Co. v. Alexander, 85 So. 104, 122 Miss. 859.
The evidence showed that appellee had control over the operative details of the work in which deceased met his death. Under the law, if appellee had such control, it is liable in damages on account thereof, and it was a question for the jury to determine whether appellee exercised such control and whether it was accordingly liable, and the lower court erred in granting the peremptory instruction for appellee and in refusing to submit this issue to the jury.
A.L.I. Restatement Torts, sec. 414; R.R. v. Norwood, 62 Miss. 565; Southern Express Co. v. Brown, 67 Miss. 260, 7 So. 318; Gulf Refining Co. v. Nations, 145 So. 327, 167 Miss. 315; Callahan Const. Co. v. Rayburn, 69 So. 669, 110 Miss. 107; Hinton Walker v. Pearson, 107 So. 275, 142 Miss. 50; Kisner v. Jackson, 132 So. 90, 159 Miss. 424; Texas Co. v. Mills, 156 So. 866, 171 Miss. 231; Texas Co. v. Jackson, 165 So. 546, 174 Miss. 737; Gulf Coast Motor Express Co. v. Diggs, 165 So. 292, 174 Miss. 650; Life Cas. Ins. Co. v. Curtis, 165 So. 435, 174 Miss. 768. R.D. Ford and Rawls Hathorn, all of Columbia, for appellee.
We submit that when this record is viewed and considered in its entirety, viewed from its four corners, there is absolutely nothing in the record to sustain appellants' contention that the trial court should have submitted the issue of whether or not Clyde Regan, the deceased, was a servant of appellee at the time of his death, to the jury.
It is not necessary that an owner or employer, in order to avoid the responsibilities of master, shall entirely absent himself from the work, or entirely disassociate himself from an active interest, or an active aid in the course of its performance, or from a supervision of the results of that performance, so long as, in respect to the details of the work necessary, or proper, to be performed for the production of the net results required by the contract, the physical management of the instrumentalities used, and the physical conduct of those employed therein, remain under the sole control of the contractor, or of those placed in authority by him or by his selection and direction.
Cook v. Wright, 171 So. 686; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 191.
Argued orally by Lee D. Hall, for appellant, and by H.C. Rawls, for appellee.
Appellants, the father, mother, sisters, and brothers of Clyde Regan, deceased, brought this action in the circuit court of Marion county against appellee to recover damages for the death of the deceased, caused by the negligence of one Lee Stamps, alleged to have been appellee's logging woods foreman.
Appellee was engaged in the manufacture of veneer at its plant at Foxworth in this state. Ball Bros. was furnishing appellee part of the logs used in its business. Lee Stamps was the woods foreman in charge of the crew, and the deceased was a member thereof. A steam log skidder was used to assemble the logs. Stamps negligently directed the skidder to be tied to a faulty tree. In the operation of the skidder the tree was pulled down, falling on the deceased and resulting in his death.
The question of negligence is out of the way. Appellee concedes that the evidence was sufficient to make that an issue for the jury.
The question, and the only one, on this appeal is whether Stamps was the servant of appellee or the servant of Ball Bros. The trial court held that he was the servant of the latter and directed a verdict for appellee.
The following facts were established without dispute: Taylor was the vice-president and general manager of the appellee, a corporation, in full charge of the operation of its plant, including the purchase of the logs. W.H. Turner owned the land, and timber on it, from which the logs were being taken. Conerly was the agent of Turner in charge of the land and the timber with authority to sell the timber. He sold such of it as was being used by appellee to Ball Bros. at $2 per thousand stumpage. Ball Bros. sold it to appellee, certain sizes at $7 per thousand and larger sizes at $8 per thousand delivered at appellee's mill, the $2 per thousand stumpage to be retained by appellee and paid to Turner, the balance to Ball Bros. The skidder and all the appliances used in the woods belonged to and were furnished by Ball Bros.; the entire crew were employed and their wages paid by Ball Bros. Ball Bros. alone had the right to employ and discharge the members of the crew.
Under the contract between Ball Bros. and appellee the latter had no control whatsoever as to the ways and means by which the logs were to be gotten out and delivered. The evidence for appellants, however, tended to show that two or three times a week Taylor, appellee's vice-president and general manager, went into the woods where the logging was being done and made suggestions and gave directions as to how the work should be carried on. Taylor admitted that to be true, but testified that it was merely by way of advice, that he had no right to control the crew in any manner, that his plant was sometimes short of logs and his purpose was to hurry up the supply. One or more witnesses testified that Taylor suggested sometimes where it would be well to place the skidder, and his suggestions were followed. There was not a bit of evidence tending to show that under the contract Taylor had the right to exercise any control whatsoever over the manner and means of doing the work. The crew was bound to know from all the facts and circumstances that Ball Bros. was their master and not Taylor. On the day Regan lost his life, Taylor was out of the state.
Under the decisions of this court, it is clear that appellee was entitled to a directed verdict. New Orleans, B.R., V. M.R.R. Co. v. Norwood, 62 Miss. 565, 52 Am. Rep. 191; Bear Creek Mill Co. v. Fountain, 130 Miss. 436, 94 So. 230; Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1, 122 So. 191, 193; Caver v. Eggerton, 157 Miss. 88, 127 So. 727; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156; McDonald v. Hall-Neely Lbr. Co., 165 Miss. 143, 147 So. 315; Gulf Refining Co. v. Nations, 167 Miss. 315, 145 So. 327; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546; Cook v. Wright (Miss.), 171 So. 686; Burch v. Southern Bell Tel. Tel. Co. (Miss.), 173 So. 300. In the Pittman case the court said that among the tests for the determination of the question, "whose servant is this," were: (1) The right to select the servant; (2) the right to discharge the servant; (3) the right to control the servant; (4) that he is not a master who is interested only in the ultimate result of the work as a whole and not in the details of the performance. In the Cook case the court held that an employer, to avoid the liability of master, need not entirely absent himself from the work, or entirely disassociate himself from active interest, or aid in the performance of the work, or from supervision of results so long as the details of the work, physical management of instrumentalities used, and physical conduct of those employed remain under the sole control of the employer.
Affirmed.