708 THE C. M. FARMER STAVE & HEADING [183 Co. v. WHORTON. THE C. M. FARMER STAVE & HEAD . ING . COMPANY V.
WHORTON. 4-4542
Opinion delivered March 1, 1937. 1. APPEAL AND ERROR.—Where the headings in the transcript show that the proceedings were had in the court from which the appeal
ARK.] THE C. M. FARMER STAVE & HEADING 709 Co. v. WHORTON. came; the recitals in the judgment and order overruling motion for new trial are to the effect -that they were made by the court; and the certificate of the clerk shows that the transcript includes the record and proceedings in the cause, it is sufficient to identify the judgment and order without referring to the record book and page where these judgments were entered. 2. MASTER AND SERVANT—INDEPENDENT coNTRACT0R.—If the contractor is under the control of the employer, he is a servant; if not under such control, he is an independent contractor. 3. MASTER AND SERVANT—INDEPENDENT CONTRACTOR.—In an action against appellant to recover for an injury sustained in the operation of a stave and heading mill, the evidence reflected that appellant furnished the mill and the money to operate it, paying appel-lee an agreed price per thousand for staves and heading on board cars; that appellee drew no salary from appellant, and .the only control that appellant exercised, either directly or indirectly, was to see that the material was sawed according to specifications, held that it established the fact that appellee was an independent contractor, and not a servant. Appeal from Madison Circuit Court; John S. Combs, Judge; reversed. • Claude A. Fuller, E. M. Fowler, A. J. Russell, Jr., and Bernal Seamster, for appellants. . . Dewey Glass, W. N. Ivie and Charles W. Ivie, for - appellee. BUTLER, J. The appeal in this case is brought seeking to reverse a judgment of the circuit court of Madi-son'county, Arkansas, in favor of E. E. Whorton against C. M. Farmer Stave & Heading 'Company and Verdi Brothers Cooperage Company for damages for personal injury alleged to have been sustained through the negligence of the appellants. The a.ppellee, -plaintiff, below, alleged that on September 7, 1933, he was an employee of tbe appellants, defendants below, engaged at tbat time in the operation of a sawmill and the manufacture of "heading"; that on said date he was injured by being drawn into a saw which was the .result of . the negligence of the appellants in failing to furnish him a safe place. and appliances with which to do his work. Service was attempted to be had upon tbe cooperage company by having a summons served upon the Auditor of State. That company entered its special appearance and filed its motion to quash the service on . the ground
710 THE C. M. FARMER STAVH& HEADING [183 CO. v. WHORTO.*.! that it was a foreign corporation not authorized to do business in *the state Of Arkansas and that it -had no officers, agents or employees. in Arkansas, nor was it attempting to transact business therein. The Certificate of the Secretary of State was :attached to this •appearance to the 'effect that the cooperage company , 'had not - attemPted to comply 'With the lawS of- the 'state relatil;-e to foreign corporatiens . doing businesS therein and.that.said company had never .had any. authority - tO operate in Ark-ansas.• This motion appears , to have been overruled , , and the cooperage company;-reserving its rights as . set out in its motion and saving its exCeptiOns to the ruling : of ;the trial court; filed its answer -denViyOli'fft - it was authorized. to do bnsiness in Arkansas of )-was engaged in any busi- ness therein, and that it ' wijs jointly -engaged with .the C. M. Farmer Stave 6'5 neaciing?uompanritr--'u'ne :allant t-facture of heading . or in hny other kind of business. Answering' further," it' denied `SPecifiCally : all • the allegar tions of the complaint,. . ' C. M; Farmer . Stave &. Heading Company likewise answered denying ,each • Of . the 'allegatibn§ Of the plaint.' • • ** • At the conclusion of the testimony each of-'-the appellantS separately moved:for Air instructed verdict. These. motions • were Overruled . and exceptions Were duly sayed. In the motien TO'r nekV trial • -theSe objeCtiOns eXcep tions : were preServed togethei ith' othet:aSSignments of:error relating q 6 imprOper action of 411e:trial court in. the introduction of 'evidence . and other . eti-Ors' alleged to have occUrred during the cofirse of the trial; 'ineluding improper arguthent of . cbiinsel and erreneous dedarations of law: - • • • • " *" • Counsel fOr appellee, iii their' bri - ef; . .* Ch . allen . g e the . sufficieney of the transcript and of the' abstract filed by the appellants. As.tb the transcriPt, it is'pointed 6ut that' it doeS net' apPer that the jUdgMent or _order oVerruling the motion for a neAV trial ihirPo'rts to have beeh entered of record' as judgment and order of- the. court ; .also,- that the 'motion for a new Irial-appears not to'have been filed. within three days after the rendition of the judgment and at . the term the same was-rendered. We . take it that this.
ARK.] . THE C. M. FARMER STAVE & HEADING 711
Co. v. WHORTON. contention is based on' the fact . that- the transcript of the judgment and of the order overruling the motion for a new trial does not make reference to the record book and page where these judgments were entered. We think this is unnecessary. The headings show that these proceedings were had in the circuit court and the recitals of the judgment and order are_to.the effect that they were made by the court. The certificate of the clerk shows that the transcript includes the record and proceedings in the cause. This is sufficient to identify the judgment and order as made and entered of record by the court. Va/n g uren•v. Lawson,.160 Ark. 631, 255 S. W. 295; Lawson v. Road Imp. Dist., 163 Ark. 303, 259 S. W. 747. As to the motion for a new trial, appellee's contention is answered by the recital in the order that the motion for . a new trial was "filed herein by. the defendants * * within the time and in the manner provided by law." . If,.in fact, the judgments and orders were not entered of record, or that the trial court on the 29th day of June, 1936, was not in session, or that the motion for a new trial was improvidently filed, the appellee could, and doubtless would have made an affirmative showing to that effect. Since the filing-of appellee's brief in which the sufficiency of the appellants' abstract is questioned, appellants have filed an amended abstract which contains a fair statement of the faêts with proPer reference to the transcript for verification. It gives us a fair understanding of the issues involved and is a substantial compliance with Rule IX of this court. Johnson v. Commonwealth B. & L. Ass'n, 182 Ark. 226, 31 S.. W. (2d) 136 ; Holcomb v. American Surety Co., 184 Ark. 449, 42 S.W. (2d) .765. We pass without notice the assignments of . error
relating to alleged errors of the trial court during the Course and in the conduct of the trial, 'arid pass to the principal cOntentions. Of, appellants for reversal of the judgment. These are . based on *the refusal 'of the trial court to direct a verdict in their favor at the.conclusion of all the testimony. The first contention, as to Verdi Brothers Cooperage Company is that 'appellee failed to shoW by the evidenee tbat it . w'as 'engaged in business within the state of Arkansas, or . that-it.had- such interest
712 THE 0..111: FAII : IVI-ER STAVE & HEADING [183 Co. q) WHORTON. or• conneCtion with the stave- and heading CoMpany as to impOse liability upon it for the 'injury sustained by the : appellee. -The neXt point made is 'that'the evidence fails to eStablish-the relationship of master and servant between the'-appellants - and appellee, but•does establish the -fact that appellee was an independent contractor. Lastly, 'it is contended that i - even though the appellee was the servant of •appellants; his injury was the result of risk which be • had- assumed. • We are of the opinion that all of these contentions are well . taken, but we wilFdiscuss only that part of the evidence relating to . the relationship of the parties and ,the laW applicable thereto. If the relationship of master and' Servant did aot eXi gt, , it neceSsatily follows that there on . the p art of the apPellants for an injury stistained by. the *appellee:while puiiuing . a Business ()Vet which they llad no ebntrol.. "When the person ,employed is . : in the exercise of a distinct awl independent employment and not. under the Immediate supervision and , control of the employer, the relation of master and servant does .not exist, and the liability of a master for the . negligence of the servant does aot exist."' lifississipPi River Fuel . Corp. v. Young, ) 188 Ark. 575; 67 S. W.. (2d), 581. "The vital test in de- .• t ermining whether • a person employed to do certain work -an independent Contractor or a mere servant is the eontrOl over the work which is reserVed by the employer. Stated as a general Proposition, if tbe contractor is under the control of the employer, he is a: servant; if not under such control; lje . is an 2 independent contractor" 14 R. C. 67, cited witkapproval in the case of Mississippi River Fuel Cori. V. Morris, 183 Ark. 207, 35 S. W. (2d) 607. "An iadependent Contractor is one whb, exercising an indePendent einploYnient, contracts to do a piece of work ac-.Cording to his own methods and without being subject to the cOntrol , of hiS . employer cxcept as to the result of the Work." 2 Words & Phrases . , second series, p. 1034, quoted with approval in the eases of Moore Lumber Co. v. Starrett, 170 Ark. 92, 279 S. W. 4, And Mississippi River Fuel Corp: v. MOrrisiSupra.
ARK.] THE C. M. FARMER STAVE & HEADING 713,
'Co. v. WHORTON. We think the evidence, when measured by the rule announced in these cases, fails to establish the relation of master and servant between appellants and appellee, but does establish the fact that appellee was an inderiend-ent contractor. In support of the contention that appel-lee was the servant of the appellants, reliance is placed on that part of the testimony of C:11. Farmer, the president of the stave and heading 'company, : as follows: "We' furnished them the money to buy timber and staves and give them so much for their staves, give them a fair price for their staves. * * * We hired these men; they took it by contract and we would furnish them the mills and the money, and contract for them to make staves and head.- iug; I was superintending the operation at-the time and furnishing the mills and the money and telling them what I wanted and hired them to.make them; .we furnished the mills and the money and they were operating the mills for us; we made an agreement with them to.g0 and make these staves and give them so much a thousand for them delivered on board cars." "Q. I , would : be glad .if you would explain, so the reporter can get it, why you stated a while ago you were engaged in the .business .of making staves and that you, were 'operating thirteen, mills? A.- Well, I meant this : -we bought these mills ; we turned these mills Over to fellows to --operate, and furnished them money; we gave them a certain price for these staves de-, livered on board the cars; now, that is to what extent we operated the mills." Further along in the testimony of Mr. Farmer, testifying specifically as : to his connection with appellee, he stated that he (Farmer),:furnished Whorton the mill and . money.to operate it and gave .him a certain price for the-heading delivered on aboard cars.;- that he had nothing to do with the operation of the- mill nor did his company; that : he, or some one _else for, the company, would go out to the mill occasionally to see. how Whorton was getting along and to see that' the lieding was being manufactured prOperly; that his -Cornimny. did not directly, or indirectly, exercise a any 'control oi superintendency over Whorton in the operation ofthe mill fur-. ther than to see that the:heading was sawed; according -to specification ; 'that Whorton was paid . .no ,salary;!md that
714 THE C. M. FARMER STAVE & . HEADING [183
Co. v. WHORTON. he used the same mill after this suit was filed making heading and selling it to other parties. In this testimony he was fully corroborated by the testimony of Mr. Whor-ton himself, who stated 'that he was "merely working for the stave and heading company," and who explained how he was working in the following way : that the company' furnished him the mill and advanced him the money for it.s operation which was placed in a bank to bis credit; that he hired the labor and furnished the gas, oil and tools 1 for its operation, purchased and paid • for the repairs ; that soine of these items were billed to the stave and heading company, but that he paid them with his checks drawn upon the bank • in which he carried his 'deposit ; that when the heading was manufactured he delivered it loaded upon the cars ; that he was not Paid any salary; but was given a certain- *lee -wt1ñ =liz -a-dirg:=delivered on board the' ears ; that he was boss of the mill, hired 'his own men, instructed them about the , . work and bossed them. ThiS evidence Makes . ont a -contract of independent employment for . the mannfactUre of- heading Without 'being subject to the controi of the employer except as to' the result Of the work. • In the case of Harkins v. National Handle Cbmpany, 159 Ark. 15, 250 S. W. 900, we held (quoting 'headnote) : "Where the lessee of a sawmill employed his own labor, bought his own material, and conducted the business according to his own methods, he *as an independent contractor, though the lessor reserved the right to Control' the kind, quality and quantity of the output according 'to specifications and prices sUb-milted from time to time, nnd the' rightto . cancel the lease in case the lessee should create obnoxious and offensive conditions, and advanced money to . meet the lesSee's . pay- rolls on lessor'S payroll forms:" The evidence is undisputed that : appellee took the mill as he found it, with machinery in the identical condition it was . when he was injured four months later, operated it according to his own methods without any control attempted to-be exercised over him by the . appellants. It, therefore, follows necessarily that the ap-
ARK.] 715 pellants are not responsible for the , injury received by appellee, and are not•liable therefOr.. It follows that the trial court erred in refusing to direct a verdict in favor Of the appellants. For that error the judgment is reversed, and,.as the case appears to have been fully developed, the same is dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.