1032 BLACK SPRINGS LBR. CO . V. PALMER. [192 BLACK SPRINGS LUMBER COMPANY V. PALMER. 4-4343
Opinion delivered June 29, 1936. 1. CORPORATION—SERVICE OF PROCESS.—Under § 1152, Crawford & Moses' Dig., providink that corporations who maintain a branch office or other place of business in any of the counties of the State shall be subject to s* uit in any of the . courts of said counties, "and service of summons or process * * upon the agent, servant or employee in ,charge of said office or pince of business shall be deemed good and sufficient," etc., suits may be brought against a corporation in any county in which it has a branch office or other place of business by serving any agent, servant, or employee who is "in charge of said office or place of business" at any place he may be found in such county. 2. MASTER AND -SERVANT—NEciAGENCE.—Where an employee sued his employer for damages for injuries sustained when a fellow .•servant who was assisting in sawing down a tree unexpectedly jerked the saw out of the tree, throwing plaintiff to the ground, when he , was injured by the falling tree, the questions of the negligence of .the master ' and of , contributory negligence of, and assumption of risk by, the employee were for the jury. 3. MASTER AND SERVANT—INDEPENDENT CONTRACTOR.—Where, in an action by an employee engaged in logging operationS ngainst a lumber company to recover for injuries received because of the alleged negligence of the company, the action is . defended on the ground that the logging had been let to 'one 11, an independent contractor, and defendant introduced a contract which on its • face showed it to be such, but there was other evidence tending to prove that he was not, a' question was presented for the jury. Appeal .from Polk Circuit Court ; A. P. Steel, Judge; affirmed. W. L. Parker, Jerry Wilt and Pryor & Pryor, .for appellant. Osro Cobb and Isgrig & Robinson, for appellee. MCHANEY, J. Appellee was severely injured when a tree he and another were engaged in cutting in Mont-gomery county. fell upon his right -leg, breaking and crushing the bones therein just above the ankle. He brought this action in Polk county to recover damages for said injuries, which resulted in a verdict and judgment in his favor for $6,500. He alleged that he was a timber cutter in the employ of appellant, felling trees on its property and_ sawing them into logs; that on May 1,
ARK.] BLACK SPRINGS LBR. CO . V. PALMER. 1033 • 1934, while engaged in felling a crooked tree, under the immediate direction of his foreman, so as to throw it across and bring to the ground another tree that had become lodged in a standing tree, his fellow-servant, one Barney Wilson, without waiting for his customary signal to remove the saw, suddenly jerked same, causing him to lose his balance and to fall to the ground in the path of the falling tree which caught him; and that the foreman was negligent in directing the cutting of that particular tree under the circumstances. Appellant moved to quash the service had upon it on the ground hereinafter discussed . whiCh waS overruled. It defended on the grounds of assumed risk, 'and that appellee was not its employee, but an employee of 'William Dalton, an independent contractor. For a reversal of the judgment against it, appellant assigns and argues five errors of the trial court as follows : 1. That the court erred in refusing to quash service. The return of the : sheriff shows that service was had on appellant by deliVering a copy of the writ to 0. B. Witherspoon, its agent in Polk county. •Appellant operates a branch plant at Eagleton, in Polk county, under the name of WitherSpoon Lumber Company, and 0: B. Witherspoon is the manager of said branch office, and lives in Mena, in said county, some twelve miles distant from Eagleton. Service was had on him at his home in Mena, instead of serving him at •his• office- in Eagleton. Service was had under § 1152, Crawford MosOs' Digest, which provides that foreign and domestic corporations who maintain a branch office or other plaCe of business in any of the countios of the State shall be subject to snit in . any of the courts of said counties; "and service of summons •Or other proceSs ' .* upon the. agent, servant or employee in charge of said office or place of business shall be good and sufficient servicO,'' etc. It is contended by appellant that the service, to be good, must be had on its agent at its office or place of business, and not at his residence in *another city or town. The statute does , not .so Provide. We think its meaning is that Suits ma,y be brought against a corpora-
1034 .BLAok SPRING 'S LBR. Ca. V'. PALmEtt: [192 tiOn in any. county in. which! it : ha S a branch office -or other Place . •of business- by serving any . •agent, !'servant or .em ployee who "-is in charge of said; office or-place, of ;business, ';' a.t.any-plaCe he may be ! f ound in .stich county:- The language : used by .. this '-cOurt in Ramey: v,B,dker,.182 Ark: 1043,. 34 .S. W. K .2d) ! 461, arid Telied . on, by appellant; that : " The; requirement of the statute is ;that summons must be serVed upon its : agent .at ;its place Of :business .is; standing- alone, misleading, - but' the next..sentence is .exli planatory and says: . .` that means on...the, agent , in charge of .its .plaCe -of: bUsiness!'at -any , place;: irrespective of. the kind . or. 'character in whiCh it .conductS or Operates its place , of busineks. ThiS- language Must d p e,! considered in !ConneCtien With • the facts. and circumstances . of that case, and we think the court. not! mean. to !held that: s.ervice must be had, under the ,statute, At the office or plaCe of ; business: ; ,,Witherspoon was the Jnanager of appellant's branch office at Eagleton when at his .home in Mena, and wo hold the service . G ood. . - 2. .That the . evidenCe • is- insufficient to support ,the verdict; and that its request for- a! directed ,verdict :in` its faver should , have been given.. We cannot, agree. AT-pellee's evidence was tO; the effect:that he ;was the Axman in .working with his, fellow-servant, Barney-.Wilson ; that he!notched the tree.to. be felled to contro1 ,,the . course of .f all ; that he. and , .Wilson . then, ,sawed :the' tree,: and, when it- Was . ready to. fall, : he:gave .the , signal to Wilson tO remove the:saw ; that Upon this occasion . Wilson jerked the saw out without waiting; for „his signal,: and before he was ready for it to -be rernoved, ,as:he , wanted- to _cut: • his :corner another . stroke or two, to,., better control, the direction • of the fall,, which- :unexpected , jerk caused him to lose. his balance and. fall, to the ground with: his head down hill, preventing . his . esCape. from the f alling; tree ;, and that, theretofore,.Wilson had' always .awaited nal and ! had never jerked-the saW ;mit prior thereto.,- In this resPect this ca g e differs . ; froth the, recent case of Union Sawmill Co. v.. Hayes;:autC„p. :17; 90 . S. ;W. ,(2d) 209, .relied upon 1:15-: appellant! A. careful . reading of that case will •disclose that , there was no .negligence on the. part! of the master,- and; that- the' . injuries received; were- the. re-•
ARk. ] BLACK SPRINGS :LER...00..)). PALMEil. 1035 sult of the ordinary dangers.a.nd . hazards incident to felling of trees, which were,assumed . by the servant. Here there is proof of a positive negligent aet on the part of the fellow-servant which was not assumed by the appellee as a matter of law. The questions of contributory negli-. gence arid asSumption of yisk were submitted to the jury under instructions :not.- complained of. • We think there was . substantial evidence to , take . the case to-the jury; .and theeotirt 'did 'not . ert 'iefusing 'the . requatlor a . peremptory inStruction.- 3. it is.next, contended by. appellant that its logging operatiens , were 'let to : one;Williani Dalton,... an 'independ-ent- contractor; and that appellee waS • 'his' employee,: and that he alone isliable ' for..appellee' . S..injUrieS, if any One is.. APpeiliint introdnced , A Written . Contract between it and. , Dalton,. which, standing, .alone, would make Dalton an independent contracton But . this, is not all. the evi-deuce . on the; subject., ; Appellee ,and..others, in the same work, testified they were employed by appellant, worked . . for it, were paid by it,. and .that deductions were made from their , pay , ,..for..mediCal . treatment and .insurance without their ' con . Sent. Appellant ' also reserved and exercised the ri o lit to..direct .Dalton when and where to work, when.,to . .sbut down . pperations, the -lengths of logs. and . .ldnd Of tinilAr to . cut. , .. : It.,Owned . the tearris. used and its 'riaine . Was Painted ,ori, the trucks . 'operated ,by Dalton. There: , are . other facts ,, and ,circumstances In :evidence, but : those aboVe „detailed , are sufficient to -take : the ,question , Jo: • the : For ' recent cases . on the subject . see H ob4-Tyestern . Tie.Co, , y; Canuical, ante p...59,, 91 S. W., (0) : 405 , ,• and . 64c , tpii , ?,q(q Deüey Lumber Co. v. Andrews,. aute . . S : W. .(, 2dj 1026. . , • • and 5. ,,,Errori is . ! assigned .in . the . 'admission of • certain .testimony,..and, in., the. ,giving and refusal . of. cer tain instructions. , , We think., it unneceSsary . to discuss - these ,,matters • , e,tail.; • We have .. carefully examined , them,. and find.no prejudicial error in either. assignment. The ;close; ,point in the - case is, the ,sufficiency of the evi-. de,nce, but we, .are of. .the .opinion•it , was . sufficient to make a, jury question: - • Affirmed., .•
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.