Arkansas Land & Lumber Co. v. Secrist

Smith, J., (after stating the facts). No serious objection is made to any of the instructions given by the court except 'that appellant insists that the undisputed evidence shows that appellee was the servant of an independent contractor, and that under no view of the evidence was the appellant company responsible for his injury. The law of this question was stated in the opinion of this court in the case of Arkansas Natural Gas Co. v. Miller, 105 Ark. 477, in which case we quoted with approval the following statement of the law from Elliott on Railroad's, volume 2, section 1063, as follows: “In general, it may be said that the liability of the company depends upon whether or not it has retained control and direction of the work. But neither the reservation of the power to terminate the contract when in the discretion of the engineer 'the ■work is not progressing satisfactorily, the right to exercise general supervision and inspect the work as it progresses, nor the right to enforce forfeitures, will change the relation so as to render the company liable.” And it was there further said: “According to this well settled principle of the law, the defendant was not liable for the negligent acts of the contractors or their servants, merely because it furnished an inspector to see that the work was done according to the contract. ’ ’ (1) The evidence in this case, when subjected to the test here stated, did not call for the submission to the jury of the question of appellant’s liability for appellee’s injury.. We think the fact is undisputed, when the evidence has been viewed in the light most favorable to appellee, that Allen was an independent contractor, and that no representative of the appellant company was shown to have had any authority or supervision-over appellee, iand ¡that no representative of appellant company directed, or offered to direct, appellee in 'the discharge of his duties. The owner of a building, or principal employer has the right always to see that the building is-constructed according to the plans, and the mere exercise of -this right does not create the relation of master •and servant between the owner and the servant, 'and does not place upon the owner any liability to the servant, unless the owner undertakes to direct the manner in which the laborer shall work in the discharge of his duties. And the same thing is true in regard t'o any mere change in .the plan of construction. The making of this change does not 'alter the relation between the owner and the servant, unless the owner undertakes to direct and supervise the manner in which the servant shall do his work in making the change. Nor do we agree with appellee in the importance to be attached to the inference which he says should be drawn from the proof in regard to the conversation between Pryor and Mattison concerning the use of one •tringer instead of two in a certain part of the work, even if we should conclude that the evidence supported ■the inference that Miattison had directed that only one stringer should be used. 'The use of one stringer, .instead of 'two, did not occasion the 'appellee’s injury, and the proof that Pryor sought Mattison’s advice would not make Allen any the less on independent contractor, because the use of 'two stringers instead of one would have been only one of those changes in the plans which the owner had the 'authority to make. (2-3) Neither the directions given in regard to cutting off 'the posts, nor 'any other similar directions, could change the relationship of the parties, because such directions were given in the exercise of the owner’s right to see that the work conformed to the plans, 'and, as was stated in the case of Arkansas Natural Gas Co. v. Miller, supra, such .supervision over the work iof the independent contractor does not make the owner or principal employer the master of the servant who performs the work if such supervision consists only in seeing that the plans have 'been followed, and does not go to the extent of saying who shall do the work or how it shall be done. The servant remains the servant of the independent contractor if the right of direction and control abides with the independent contractor. Appellee asserts an additional right of recovery, that is that 'appellee had furnished unsafe plans for building the sheds. But we need not discuss the law of that question, because the proof does not show that appellee’s injury was due to 'any defective plans. Appellee proved, and the fact is undisputed, that a lot of lumber, containing a thousand or twelve hundred feet, had been negligently piled together, and that this great weight caused the giving away of the joists which resulted in appellee’s injury; and the stacking of this lumber was no part of the plans. Moreover, this ground of liability was not alleged in the pleadings, 'and appellant’s liability on that account was not submitted to the jury in any of the instructions asked or given, and we will not remand this cause for a trial upon .that issue. In our view of this evidep.ce the 'court should have instructed the jury that Allen was an independent contractor, and that the proof was insufficient to show that the .appellant company had exercised any control or supervision over appellee in the 'discharge of Ms duties which made it liable for Ms injury, und ia verdict should, therefore, have been directed in his favor. And for the error in so refusing to direct a verdict the judgment will be reversed and the cause will be dismissed.