Bear Creek Mill Co. v. Fountain , 130 Miss. 436 ( 1922 )

Ethridge, J.,

delivered the opinion of the court.

The appellee, Joe Fountain, brought suit against the appellant for a personal injury alleged to have been inflicted upon the appellee, the plaintiff, by a‘splinter from a steel chisel being used in tightening such screw on a saw; it being contended that the chisel'was a defective tool, and that appellant owed him the duty to furnish him a safe tool. He alleged that he was employed by the appellant. The general issue was pleaded, and also a special plea was filed by the appellant denying that the plaintiff was in its employment, but contending that he was the servant of one McLeod, an independent contractor who was operating machinery, and that plaintiff was the servant of McLeod, and not of the company. There was no reply to this special plea other than the attorneys for the plaintiff wrote' upon said plea, “Issue in short,” and signed their name thereto. The case proceeded to trial as though issue was joined thereon, except the defendant made general objections to evidence introduced by the plaintiff, and at the conclusion of the plaintiff’s evidence made a motion to strike out the plaintiff’s evi-. dence and for a peremptory.

The testimony of the plaintiff was that he was employed by McLeod, but that he got his pay from the office of the company, and that he procured from time .to time trade checks issued by the company on their commissary which he used in trade' at the commissary, and also that accident insurance was taken out of Ms wages at the office. He testified that he was employed to stack and grade shingles, and that when, he first went to work the general foreman of the mill showed him how to do his work. He testified that on the day the injury occurred he had been cleaning away the sawdust and accumulation around a saw, and had assisted Mr. McLeod in taking a saw from the shaft to be sharpened or filed, and after it was sharpened or filed he helped to replace it on the shaft and was standing by when Mr. McLeod took the chisel and a hammer and undertook to tighten a screw which held the saw securely on1 the shafting; that, while McLeod was holding the chisel and striking the chisel with the hammer to tighten the screw, a splinter or fleck from the chisel struck him in the eye, resulting in the loss of his vision. He also testified that he made one visit to the company’s doctor, a Dr. Faulk, and that Dr. Faulk did not charge him for said visit, and that he paid Dr. Faulk nothing.

- McLeod and the officers of the company testified that McLeod’s contract was to take machinery and material furnished by the company and saw shingles by the thousand, McLeod to furnish his own labor; that the plaintiff was not employed by the company, but was employed by and paid by McLeod; that no accident insurance was collected from the plaintiff, but that McLeod had arranged with the company to get trade checks and have them charged to him; and that the company kept an account against McLeod for such things. McLeod also testified that he did not take any medical bills out of the wages of the boy. The boy worked regularly, losing only one day, and he did not complain of pain in his eye.

A number of questions are raised by the appellant: First, that it was not liable because the plaintiff was not a servant of the lumber company, but was a servant of McLeod, an independent contractor; second, that the company in no event would be liable for the injury because the chisel was a simple tool, and the company was not liable for injuries resulting from its defects. It is insisted by the appellee that plaintiff’s testimony contradicts the testimony of McLeod and the officers of the company as to his employment, and that the question of employment was one for the jury, and that the jury had found against the appellant from' this conflict of evidence.

We have carefully considered the evidence, and we do not think the plaintiff has met the burden of proof imposed upon him in the case. There is, in our opinion, no conflict in the evidence when the evidence is considered on the theory that each party was honestly trying to state the facts. The facts relied on by the appellee, to constitute a contract ar'e not inconsistent with the testimony of McLeod and the officers of the company. McLeod, under the testimony, ran the shingle mill, worked when he pleased, and quit when he pleased. He employed and discharged his labor. He had no contract for a definite time, and he testified on cross-examination that the company could have discharged him or any one else on the works, he supposed, any time it got ready. It is not necessary for such a contract to be fixed for a definite period. The company might have the right to abrogate the contract at will; still, if McLeod was hiring, paying, and controlling his labor, and being paid for his output, as he testified, he would be an independent contractor.

In the next place, we think there is no liability because the tool in question was a simple tool. It is true the company’s employee had manufactured the tool, but there is no testimony in the record to the effect that the company’s blacksmith was not a competent man to manufacture such a tool. Neither is it shown that the material from which the tool was manufactured was not suitable for such purposes. It is said in the brief for the' appellee that the chisel was made from a par spring taken from a box car, and that the spring was so brittle that it wqs wholly unsuitable for making a chisel of the kind here involved. There is no evidence, however, in the record to show that the' spring was unsuitable, nor that the blacksmith could not retemper the spring to make it a proper and suitable, tool. The mere fact that a piece of the chisel was broken in the operation is not sufficient to show that the tool was not carefully prepared and manufactured.

We think on the simple tool proposition this case comes within the authorities reviewed and announced in the opinion this day handed down in the case of Wausau Southern Lumber Co. v. Cooley (Miss.), 91 So. 228.

The judgment will therefore be reversed, and the case dismissed.

Reversed and dismissed.