Summary
In Crosby Lumber Mfg. Company v. Durham, 181 Miss. 559, 179 So. 285, this Court defined a servant and an independent contractor in these words: "A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.
Summary of this case from Cobb, et al. v. Vicksburg Hardwood Co.Opinion
No. 33085.
February 28, 1938.
1. MASTER AND SERVANT.
A "servant" is a person employed by a master to perform services in master's affairs, whose physical conduct in performance of the service is controlled or subject to control by master.
2. MASTER AND SERVANT.
As distinguished from a "servant," with respect to his employer's liability for his negligence, an "independent contractor" is a person who contracts with another to do something for him, but is not controlled by the other nor subject to right to control with respect to his physical conduct in performance of the undertaking.
3. AUTOMOBILES.
In determining whether trucker was a servant of lumber company employing him, so as to render lumber company liable for death of trucker's employee caused by trucker's negligence, provisions of the contract are conclusive, in absence of evidence of direct physical control by lumber company.
4. AUTOMOBILES.
Where contract between trucker and lumber company provided that trucker would haul logs which lumber company should cause to be cut and felled within six months, but expressly provided that lumber company should have no control over methods of hauling, trucker was an "independent contractor," and hence lumber company was not liable for death of trucker's employee caused by trucker's negligence.
5. MASTER AND SERVANT.
Whether truck owner was liable for death of truck driver when truck skidded because of flat tire held properly submitted to jury.
6. MASTER AND SERVANT.
In action against truck owner for death of truck driver caused by flat tire, refusal of instruction that owner was not liable if driver was fully aware of defect in tire and of danger therefrom was not error, under statute abolishing doctrine of assumption of risk (Code 1930, section 513).
7. MASTER AND SERVANT. Negligence.
In action against truck owner for death of truck driver caused by flat tire on truck, instruction that driver's contributory negligence in driving truck after one tire had been repaired after blow-out would not bar recovery was not erroneous, though it did not consider owner's knowledge of defect, or danger so imminent that no ordinarily prudent person would encounter it even under orders, and though it would warrant jury in believing that contributory negligence would reduce the award (Code 1930, section 511).
8. NEGLIGENCE.
Contributory negligence will not bar recovery for injuries or death under statute, irrespective of its degree (Code 1930, section 511).
9. TRIAL.
In action for death occurring in logging operations, improper statement in counsel's argument to jury that a person present in courtroom was a cripple as result of logging operations did not require entry of mistrial, where court sustained objection thereto and directed jury to disregard the statement.
Appeal from the Circuit Court of Wilkinson County. HON. R.E. BENNETT, Judge.
Bramlette Bramlette, of Woodville, for appellant.
We respectfully submit that C.C. Stockstill was an independent contractor and as much an independent contractor as the Illinois Central System who also hauled logs for Crosby Lumber and Manufacturing Company.
The relation of master and servant does not exist, unless the alleged master has some sort of substantial control over the means and methods of carrying out the contract.
McDonald v. Hall-Neely Lbr. Co., 165 Miss. 143; New Orleans, B.R.V. M.R.R. Co. v. Norwood, 62 Miss. 565, 52 Am. Rep. 191.
There is no intimation here that Crosby Lumber and Manufacturing Company had the right to select D.P. Durham as a servant or even knew of his existence in working for the independent contractor, C.C. Stockstill; there is no intimation that Crosby Lumber and Manufacturing Company had the right to discharge D.P. Durham or the right to control D.P. Durham.
The burden was on appellee to prove that the alleged relationship of master and servant existed, which burden appellee wholly failed to meet.
Hutchinson-Moore Lbr. Co. v. Pittman, 154 Miss. 1; Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441; Bear Creek Mill Co. v. Fountain, 130 Miss. 436; Cook v. Wright, 177 Miss. 644; Cox v. Dempsey, 177 Miss. 678; Regan v. Foxworth Veneer Co., 178 Miss. 654; Kisner v. Jackson, 159 Miss. 424; Gulf Refining Co. v. Nations, 167 Miss. 315; Texas Co. v. Jackson, 174 Miss. 737.
The closing argument of counsel for appellee is not authorized by any law of Mississippi; if it is authorized by any law of Mississippi, or jurisprudence, such law or authority is violative of Article XIV to the Constitution of the United States, known as the Fourteenth Amendment, in that it deprives appellant, Crosby Lumber and Manufacturing Company, of its property without due process of law; in addition, such argument is in violation of Section 14 of the Constitution of the State of Mississippi.
In the closing argument to the jury appellee's counsel, as shown by the special bill of exceptions, said: "As a result of this logging operation, Elwyn or Boo Carter is crippled today."
Whereupon, counsel for Crosby Lumber and Manufacturing Company objected to such statement in the closing argument and called attention of the court to the fact that Elwyn or Boo Carter was sitting in the court room, directly across the aisle from the jury during said argument and had been sitting there with his crutches during the course of the trial; whereupon, counsel for Crosby Lumber and Manufacturing Company moved the court to direct the jury to disregard the remarks of appellee's counsel in regard to Elwyn or Boo Carter with reference to his injury.
This motion was sustained by the trial court who directed the jury to disregard said remarks, but the mischief being ineradicable, counsel for Crosby Lumber and Manufacturing Company moved that a mistrial be entered in the case, which the trial court overruled.
In Brush v. Laurendine, 168 Miss. 7, this Honorable Court, at page 12, said in regard to an improper statement in a closing argument, that the trial court's instructing the jury to disregard the remarks may in some cases suffice but ". . . if the mischief be ineradicable, the objector must then and there move for a mistrial."
Berger v. U.S., 295 U.S. 78, 79 L.Ed. 1314; "The Court and Due Process of Law," Mississippi Law Journal, December, 1937.
The demurrer of Crosby Lumber and Manufacturing Company to the declaration should have been sustained, the seventh ground of which was that the declaration fails to allege that D.P. Durham, alleged to have been an employee, was acting within the scope of his employment, which was fatal.
Petroleum Iron Works v. Bailey, 124 Miss. 11.
The declaration did not allege that Crosby Lumber and Manufacturing Company had knowledge, actual or constructive, of the defective truck tire.
Hope v. Railroad Co., 98 Miss. 822; Lampton v. Atkins, 129 Miss. 660; Railroad Co. v. Bennett, 111 Miss. 163; Austin v. M. O.R. Co., 134 Miss. 226; Crossett Lbr. Co. v. Land, 121 Miss. 834; Y. M.V.R. Co. v. Hullum, 119 Miss. 229.
In Brown v. Coley, 168 Miss. 778, this Honorable Court laid down the principal of law that when obvious danger to an alleged servant is so imminent that no person of ordinary prudence should encounter it, even under orders, there is no liability.
If it had been true as contended by appellee that Stockstill was not an independent contractor but that both Stockstill and Durham were employees of Crosby Lumber and Manufacturing Company, which we deny, there is not a scintilla of evidence that Stockstill and Durham would have been more than fellow servants, there is no evidence that Stockstill was a foreman or a superior of Durham in any way. With the existence of this undeniable situation, then had it been true, which we deny, that both Durham and Stockstill were employees of Crosby Lumber and Manufacturing Company, there is no evidence to show any authority on the part of Stockstill that would bind Crosby Lumber and Manufacturing Company by any report made by Durham to Stockstill; in other words, there was no effort to show that Stockstill had any authority to bind Crosby Lumber and Manufacturing Company by telling Durham to proceed with the use of his truck or to use the tire that blew out. Telling Stockstill would be no more than telling any other fellow worker. Of course, the burden was on appellee throughout to show the proper relationship of employer and employee which did not exist and it was impossible for appellee to prove same.
Buckley v. United Gas Public Service Company, 176 Miss. 282; Hercules Powder Co. v. Hammack, 148 Miss. 304; Petroleum Iron Works v. Bailey, 124 Miss. 11; Harper v. Public Service Corporation, 170 Miss. 39; Buckeye v. McMorris, 172 Miss. 99.
Clay B. Tucker, of Woodville, for appellee.
We submit that the contract here in issue is plain and unambiguous, and that evidence, had it been offered by plaintiff to the effect that Crosby Lumber and Manufacturing Company did exercise, or attempt to exercise, some supervision over Stockstill or his assistants in the performance of their duties under the contract, would not have been admissible, nor would have evidence been admissible by Crosby Lumber and Manufacturing Company to the effect that it had not exercised, or attempted to exercise, any supervision over Stockstill or his assistants in the performance of their duties under the contract, if it had been offered.
Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Gulf Refining Co. v. Nations, 167 Miss. 315, 145 So. 327; Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546.
We confidently submit that there is no independent contractor in this case, under this contract here, and under this record.
Appellee contended that under the contract C.C. Stockstill was the servant of Crosby Lumber and Manufacturing Company, that because C.C. Stockstill was a servant, D.P. Durham, employed by the said C.C. Stockstill to drive his, Stockstill's, truck for Crosby Lumber and Manufacturing Company in hauling its logs, was also the servant of Crosby Lumber and Manufacturing Company, and, according to law, was entitled to all the rights of a servant against Crosby Lumber and Manufacturing Company. This issue was squarely before the lower court and the court ruled that under the contract here Stockstill was the servant of the appellant, Crosby Lumber and Manufacturing Company, and granted the appellee an instruction, "that D.P. Durham, her son, was an employee of the said defendants, Crosby Lumber and Manufacturing Company, a corporation, and C.C. Stockstill at the time he received the injuries in question," this being true, the negligence of Stockstill thereby became the negligence of the Crosby Lumber and Manufacturing Company.
Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Gulf Refining Co. v. Nations, 167 Miss. 315, 145 So. 327.
It is true that the burden was on the appellee to make out her case and to show liability of the defendants, C.C. Stockstill and the Crosby Lumber and Manufacturing Company, by a preponderance of the evidence, but, on the lower court ruling that Stockstill was a servant under the contract of Crosby Lumber and Manufacturing Company, the appellee could and did meet this burden, by proving that Stockstill, the alter ego of Crosby Lumber and Manufacturing Company, was liable, and appellee, after making out its case against Stockstill and proving Stockstill liable, did not have the additional burden of proving Crosby Lumber and Manufacturing Company liable also, for it is the law, always has been the law, and I hope to God it always will be the law, that when its servant is liable, the master is liable also.
Pearl River Valley R. Co. v. Moody, 178 Miss. 1, 171 So. 769.
Appellant's counsel objected to the statement by appellee's counsel in his closing argument, when he said: "As a result of this logging operation Elwyn or Boo Carter is crippled today." The lower court immediately sustained the objection of appellant's counsel and directed the jury to disregard these remarks. Appellee's counsel thereupon did not persist and made no remarks to the jury in reference thereto and did not resort to resentful and harmful retorts, as is shown by special bill of exceptions; any error in these remarks, if there was any error, was thereupon cured, and the case is not reversible therefor.
Brush v. Laurendine, 168 Miss. 7, 150 So. 818.
It is readily seen that the declaration charges that D.P. Durham was actually performing the work he was employed to do when injured.
The declaration charges that D.P. Durham was the servant of the defendants, that the defective tire on the day before and the day of the accident was pointed out to C.C. Stockstill, and each time Stockstill ordered him to go ahead and drive the truck and that he would go to Natchez and get him a new set of tires. This was actual notice to Stockstill and also actual notice to Crosby Lumber and Manufacturing Company through Stockstill, its servant.
The declaration states a cause of action, because under its allegation that the defective tire was pointed out to Stockstill and Stockstill ordered the said Durham to go on and drive the truck with the defective tire, and that he, Stockstill, would go to Natchez and get a new set of tires, the doctrine of an obvious and ordinary risk did not apply. We submit that the demurrer was properly overruled.
That D.P. Durham was not guilty of any negligence that contributed to his injury, is especially true in this case, since the uncontradicted and undisputed proof is that the truck was being driven at about twenty miles per hour, when the tire blew out and caused the wreck.
If, under the contract in this case, Stockstill was a servant of Crosby Lumber and Manufacturing Company, the fellow servant rule does not apply.
Texas Co. v. Jackson, 174 Miss. 737, 165 So. 546; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866; Gulf Refining Co. v. Nations, 167 Miss. 315, 145 So. 327.
Argued orally by D.C. Bramlette and Maxwell Bramlette for appellant and by Clay B. Tucker for appellee.
Crosby Lumber Manufacturing Company, appellant, is engaged in the manufacture of lumber, and entered into a contract with C.C. Stockstill reading as follows: "This contract made and entered into this 2 day of November, 1935, by and between Crosby Lumber Manufacturing Company, a corporation, hereinafter referred to as first party, and C.C. Stockstill, hereinafter referred to as second party, witnesseth; For and in consideration of one dollar ($1.00) paid each other, receipt of which is hereby acknowledged by both, and other considerations hereinafter set out, first party and second party hereby enter into this contract the terms of which are that second party agrees to haul logs of first party from such timber that first party causes to be cut and felled, within 6 months from date hereof, on Section 36, Township 4 North, Range 2 West, Wilkinson County, Mississippi, and the said logs from said section are to be loaded, hauled and placed in the mill pond of first party at first party's saw mill in Crosby, Mississippi, by second party, for which first party agrees to pay second party the sum of Eight Dollars per thousand feet. Said logs are to be hauled by second party as cut and payments therefor are to be made by first party twice each month thereafter. It is agreed and understood that first party is to have no control, whatever, over the manner, method or means of hauling the said logs by second party, it being further agreed and understood that second party is to load, haul and place in said mill pond the said logs from said section that first party causes to be cut and made ready for hauling; further, first party is to hold second party responsible only as to the result of his work, as agreed to herein, and not as to the means by which it is accomplished." (Signatures omitted.)
The evidence does not disclose that the Crosby Lumber Manufacturing Company exercised any control over the physical conduct of Stockstill or his employees in carrying out the terms of this contract, or in the employment and discharge by Stockstill of his employees.
On the occasion in question, D.P. Durham, an employee of Stockstill, was driving a truck owned by Stockstill along a public road loaded with logs belonging to the Crosby Lumber Manufacturing Company, for delivery to it in accordance with the contract. One of its tires, because of a defect therein, became flat causing the truck to skid, turn over, and injure Durham so severely that he shortly thereafter died. Ashley was with Durham on the truck a short time before the wreck occurred, and stated that one of the tires blew out, whereupon he left and was not with Durham when the wreck occurred. Durham evidently repaired the tire, but how does not appear, for a short time thereafter he was again driving the truck resulting in the wreck as above stated. Durham's testimony was taken before his death, and it appears therefrom that before he started on the occasion in question, he became aware that one of the tires was weak, and called Stockstill's attention thereto, who told him to go ahead with it, and that "he would go to Natchez and get new set of tires." Durham said nothing, nor was he asked, about the blow-out testified to by Ashley.
The suit was brought by Durham's administratrix in the court below, and she recovered a judgment of $9,000 against both Crosby Lumber Manufacturing Company and Stockstill. Requests for directed verdicts in their favor were separately made by the appellants and were refused. They will be considered separately.
As to Crosby Lumber Manufacturing Company. Unless Stockstill and his employees were servants of Crosby Lumber Manufacturing Company, it cannot be held liable for the death of Durham. "A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master. An independent contractor is a person who contracts with another to do something for him, but who is not controlled by the other, nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking." Restatement, Agency, sec. 2 pars. 2 and 3 p. 11; Texas Co. v. Mills, 171 Miss. 231, 156 So. 866, and numerous other decisions of this court.
As the evidence does not disclose the exercise of any control by the appellant over the physical conduct of Stockstill and his employees in the performance of the contract, or over the employment and discharge of his employees, the relation created by his contract with appellant must be determined by its provisions. It is manifest therefrom, that the contract was not intended to create the relation of master and servant, but to constitute Stockstill an independent contractor. But appellee says that the contract fails to carry out this intent because of its words, "that second party agrees to haul logs of first party from such timber that first party causes to be cut and felled within 6 months from date hereof." The argument, in substance, is that under this provision of the contract, the Crosby Lumber Manufacturing Company was under no obligation to call on Stockstill for the hauling of any logs, which, but merely for the purpose of the argument, we will assume to be true, consequently, the contract is, in effect, one terminable at will by Crosby Lumber Manufacturing Company. Because of this, appellee says that company had power to control Stockstill both as to his physical conduct in the performance of the contract, and in the employment and discharge of his employees, by declining to call on him for the hauling of logs unless he would so agree. Assuming this to be true, for the purpose of argument, it does not follow therefrom that the contract creates the relation of master and servant. The power given an employer under a contract for services to terminate it at will is a fact for consideration in determining whether the contract creates the relation of master and servant, but, of itself alone, is not determinative, and the mere fact that what logs Stockstill should haul were for the determination of Crosby Lumber Manufacturing Company did not constitute such control over him as to make the relation between them that of master and servant. McDonald v. Hall-Neely Lumber Co., 165 Miss. 143, 152, 147 So. 315, 316. Cf. Gulf Refining Co. v. Nations, 167 Miss. 315, 145 So. 327. The request for a directed verdict by the Crosby Lumber Manufacturing Company should have been granted.
As to Stockstill. We do not understand Stockstill to complain of the refusal to grant him a directed verdict, but, if mistaken in this, no error was committed in refusing so to do. Stockstill was refused the following instruction: "The court instructs the jury for the defendant, C.C. Stockstill, that although an employer has the duty to provide and maintain his employees with reasonably safe instrumentalities with which to work, and although you believe, from the evidence in this case, that the tire involved herein was so defective and unsafe as to be dangerous to the life of decedent, still if you believe from the evidence in this case that the defect in said tire was obvious and known to decedent, and decedent was fully aware of said defective tire and danger used said tire voluntarily or by orders of C.C. Stockstill, there is no liability on the part of C.C. Stockstill, if you further believe from the evidence in this case that the condition of said tire on the truck which decedent was driving constituted a danger so imminent that no person of ordinary prudence should encounter such danger, even under orders."
No error was committed in the refusal of this instruction, for the doctrine of assumption of risk by injured employees has been abolished by section 513, Code of 1930, "in any case where such injury or death results in whole or in part from the negligence of the master," with certain exceptions within which this case does not come. But it is said by counsel for the appellant that this doctrine still applies where the servant is aware of the danger incurred by him, and it is such that no person of ordinary prudence should encounter it, even under orders so to do; citing, in support thereof, Brown v. Coley, 168 Miss. 778, 152 So. 61. It is not necessary for us to express an opinion on this, for the reason that the evidence here does not come within it.
The court below instructed the jury that although they might believe "from the evidence, that D.P. Durham was guilty of contributory negligence in driving the truck with the tires on the front wheels thereof in the condition they were, after having one of the tires on the front wheel repaired after a blowout," such contributory negligence would not bar a recovery.
The three objections to this instruction are: (1) It does not take into consideration any knowledge on the part of the appellant, Stockstill; (2) or a danger so imminent that no person of ordinary prudence should encounter, even under orders; and (3) it would warrant the jury in believing that contributory negligence would reduce the award.
1. The instruction does not deal with the negligence of Stockstill, but only with the effect of contributory negligence on the part of D.P. Durham.
2. Section 511, Code of 1930, prevents any contributory negligence from barring a recovery without reference to its degree.
3. That section also provides that the damages awarded may be diminished in proportion to the amount of negligence attributable to the person injured.
Complaint is made of a statement by the appellee's counsel to the jury when arguing the case before it. It appears from a special bill of exceptions that one Elwyn or Boo Carter, a cripple who walked with the aid of crutches, was in the courtroom in full view of the jury, and that counsel for the appellee, in the course of his argument, said: "As a result of this logging operation, Elwyn or Boo Carter is a cripple to-day." The court sustained an objection thereto, and directed the jury to disregard the statement. Appellant then moved that the case be withdrawn from the jury and a mistrial entered, which motion was overruled, and we are unable to see that any error was thereby committed.
The judgment of the court below will be reversed as to Crosby Lumber Manufacturing Company, and the case dismissed as to it, but it will be affirmed as to Stockstill.
So ordered.
ON SUGGESTION OF ERROR.
We are firmly convinced that the opinion in this case correctly announces the principles of law applicable to its facts, and especially do we feel content that we did no violence to the case of Kisner v. Jackson, 159 Miss. 424, 132 So. 90.
In adhering to our decisions that Stockstill was an independent contractor and not a servant of Crosby Lumber Manufacturing Company, we cite in further support thereof the case of Cook v. Wright, 177 Miss. 644, 171 So. 686, as clearly and unequivocally supporting the view of this court herein.
Suggestion of error overruled.