Lamb v. Fulton Bag & Cotton Mills

Hill, J. Mrs. Lamb sought to recover for the wrongful death of her minor son. Her petition contained four counts. A demurrer was filed to all of the counts, and was sustained as to counts 1, 3, and 4, and overruled as to count 2. Exceptions pendente lite were preserved as to the judgment sustaining the demurrer as to counts 1 and 3. No exception was taken to the judgment on the demurrer as to count 4. The case went to trial on count 2, and on motion of counsel for the defendant, at the conclusion of -the plaintiff’s evidence, a nonsuit was granted. The substantial allegations of count 2, to which the evidence applied, were that John Lamb, the minor son of the plaintiff, his widowed mother, was employed by the defendant without her knowledge or consent, and was placed at work at a dangerous employment, at which he was killed. This count contains no allegation of negligence, and seeks to recover the value of the child’s services up to the age of twenty-one. The suit is based upon the theory that the defendant, having employed the plaintiff’s minor son without her consent, is liable in any event for the loss of his services resulting to her by reason of his homicide, and the issue determined on the suit was as to whether the minor, at the time of his death, was employed by the defendant as its servant, and the judgment of nonsuit is based upon the conclusion of the court that the evidence did not disclose the existence of this relation, and therefore that [574] there can be no recovery based upon the theory of master and servant, set up under the second count. Incidentally it may be remarked in passing that the allegation in this 'Count, that the plaintiff’s minor son was put at dangerous work without her consent, is not supported by any evidence. The issue as to whether he was employed by the defendant as its servant depends upon the construction of the evidence, and the evidence as to this issue, substantially stated, is as follows: The' plaintiff testified that at the time of her • son’s death he was working, as she thought, for Mr. C. E. Henry, and not for the defendant. She testified further, that, while -she knew that her son was working for Henry, she had not limited the character of services to be performed by him while in Henry’s employment. He made $1.50 per day while working for Henry, which sum he turned over to her. One Mathers, another witness for the plaintiff, testified that at the time of Lamb’s death he, the witness, was employed by O. E. Henry, who was engaged in the general tin business, doing all kinds of sheet-metal work, roofing, guttering, etc.; that he, acting for Henry Brothers (which was the trade name of C. E. Henry), made a contract, to do certain described work for the defendant, the Fulton Bag & Cotton Mills, this contract being between C. E. Henry, in the business name of Henry Brothers, and the Fulton Bag & Cotton Mills; that Mathers made the contract with the Fulton Bag & Cotton Mills for Henry Brothers to do the work for $1.75 per hour for a man and his helper, which were to be supplied by Henry Brothers; that the Fulton Bag & Cotton Mills showed the witness, Mathers, representing Henry Brothers, the work which the latter was to do, consisting of putting up gutter-pipes, down-spouts, etc. The Fulton Bag & Cotton Mills had some material which it agreed to turn over to Henry Brothers to be used in the work. Henry Brothers were to do the work in their own way, using their own skill, and without any direction from the Fulton Bag & Cotton Mills, except that when Henry Brothers had finished doing the work on one building, the Fulton Bag & Cotton Mills showed them the next building on which to work, but the work contracted to be done was one entire job. Mathers, representing Henry Brothers, selected John Lamb, the plaintiff’s son, who was employ575 eel by Henry Brothers to help him do the work to be done by Henry Brothers under their contract with the" defendant corporation. Lamb appeared to be abont 16 or 17 years old at the time of his employment by Henry Brothers, and stated that he was 16, and he had been working for Henry Brothers about a year and a half, doing work of the same character as was to be done for the defendant corporation by Henry Brothers. Ninety-five per cent, of the work that Lamb did was roofing work. He was paid $1.50 per day by Henry Brothers for nine hours work, and Mathers was paid $5 per day by Henry Brothers for nine hours work, while Henry Brothers received from the defendant corporation, under the contract, $1.75 per hour. Henry Brothers selected Mathers and Lamb, who was employed by them generally, to do the special work under the contract for the Fulton Bag & Cotton Mills. The Fulton Bag So Cotton Mills showed Mathers the work which was to be done under its contract with Henry Brothers, which consisted of putting up gutter-pipes, down-spouts, etc. The Fulton Bag So Cotton Mills loaned to Mathers a negro to help him in doing the work generally under the contract with Henry Brothers, the duty of the negro being to pull the scaffold from place to place as needed. This was a voluntary act on the part of the defendant, for under the contract it was under no obligation to supply any help to Henry Brothers. When Lamb fell off the building Mathers did not know why he was on the roof or that he was then doing any work at all on the roof. The contract between the defendant andi Henry Brothers did not specify the number of hours they were to work for the defendant, but Henry Brothers regulated their own hours. Mathers and Lamb, while doing the work embraced in the contract, went in and out of the defendant’s mill at pleasure, and when Lamb was killed, Mathers, acting for Henry Brothers, hired another man to finish the work that Lamb was doing. The payment for the work was made directly to C. .B. Henrjr, doing business as Henry Brothers. The Fulton Bag So Cotton Mills had no control over Henry Brothers, Mathers, or Lamb, but could order the latter two off of the premises. “ They did not have the right to fire either Mathers or' Lamb at any time, because they were working for C. B. Henry.” The Fulton Bag So Cotton Mills had no knowledge as [576] to what pay either Mathers or Lamb was getting from Henry Brothers. A letter was introduced from the Fnlton Bag & Cotton Mills, confirming the contract made with Henry Brothers through Mathers, and further showing that the defendant was to pay for any material used in doing the work, and was to pay Henry Brothers $1.75 per hour to cover the time of both men on the job. This is a substantial statement of the evidence for the plaintiff, on the issue as to whether the plaintiff’s son, at the time of his death, was the employee of the defendant corporation, or was employed by an independent contractor to do the work for the Fulton Bag & Cotton Mills. It is not necessary to add anything further to what is said in the headnotes. Judgment affirmed. Jenhins, P. J., and Stephens, J., concur.