| Ark. | Jan 11, 1915
(after stating the facts). Conceding that exceptions were properly saved to the ruling of the court in rejecting the offered testimony of witness Maars and that this testimony was competent, there was no prejudicial error in the ruling of the court, for the reason that if the testimony .and the part of the contract offered had been read the result could not have been different. For, as we view the undisputed evidence, considering the excluded testimony and the paragraphs of the contract as a part of the evidence, the court correctly instructed the jury that if the appellee was employed by the appellant and was directed by its foreman or manager to work on the slddder under the direction of one Saltwiek, and that the skidder was overturned by reason of the negligence of Saltwiek in operating the same, resulting in appellee’s injury, that the appellant would be liable in damages therefor. In other words, the excluded testimony, including the provisions of the contract, when the latter are properly construed, did not tend to show that Salt-wick at the time of the injury, was not, as to the service he was performing, the servant of the appellant. - On the -contrary, we think the claus-es of the contract under review and the undisputed evidence -show that at the time of appellee’s injury Saltwiek, who was there for the purpose of operating the machine and for the purpose of demonstrating -the same, in order to see whether it worked properly, and for the purpose of instructing appellant’s employees how -to manipulate it, was, while in the performance of that service, the servant of the appellant.
The provisions of the contract under review show that the appellant was to have the ‘£ services of a man to superintend and assist in the erection of the machine,” and ££to properly instruct our (appellant’s) men in its manipulation.” This provision -of the contract clearly shows that this man, furnished by the Clyde Iron Works,was to perform services for .or to be in tbie service of tbe appellant,- superintending and assisting in the erection of the machine and instructing appellant’s men as to how to operate the same. While performing this service for appellant and as appellant’s servant in so doing, under the contract with the Clyde Iron Works, the cost of the service, or wages, to be paid the servant, except the item of board, was to be borne by the iron works. But Salt-wick’s relation to the appellant, ias we view the undisputed evidence, while engaged in the work of demonstrating and operating the skidder, was that as already stated of servant of the appellant. The case is ruled by the following excerpt from Coughlan v. Cambridge, 166 Mass. 268" date_filed="1896-05-25" court="Mass." case_name="Coughlan v. City of Cambridge">166 Mass. 268, 44 N. E. 218: “It is well settled that one who is the general servant of another may be lent or hired by his master to another for some special service, so as to be-' come, as to that service, the servant of such third party. The test is whether, in the particular service which he is engaged to perform, he 'continues liable to the direction and control of 'his master, or becomes subject to that of the party to whom he is lent or hired. ”
We quoted this language in the recent eases of Arkansas Natural Gas Company v. Miller, 105 Ark. 477" date_filed="1912-12-16" court="Ark." case_name="Arkansas Natural Gas Co. v. Miller">105 Ark. 477, and St. Louis, I. M. & S. Ry. Co. v. Yates, 111 Ark. 486" date_filed="1914-02-16" court="Ark." case_name="St. Louis, Iron Mountain & Southern Railway Co. v. Yates">111 Ark. 486. In the latter case we also quoted the following from Sherman & Redfield on Negligence, (4 ed.), 269: “Servants who are employed and paid by one person may, nevertheless, be ad hoc the servants of another in a. particular transaction, and that, too,, where their general employer is interested in the -work. They may, without consulting their master, but in good faith, assist a person independently employed to do something which shall benefit their master, but with which neither he nor they have any right to interfere, and in which they act entirely under the control of such other person. In none of these cases is the nominal master responsible to strangers for their acts or omissions.”
Since appellant does not deny that appellee was injured through the negligence of Saltwick, it follows that if Saltwiek, while operating and demonstrating, the skidder, ad hoc was the servant of appellant, then the latter would be liable. Treating the evidence of Maars and the contract as a part of this record, the undisputed facts present a typical1 case for the application of the ■above doctrine. 'Saltwiek was in the general employ of the 'Clyde Iron Works, and piaid by it, but under the contract of sale between it and the appellant the 'Clyde Iron Works was not to erect the skidder nor to superintend its erection. It had no duties to perform with reference thereto as an independent contractor. It was not in the control of the operation of the machine. It did not have the control of the erection of the machine; nor while it was being operated by its agent Saltwiek, for the purpose of demonstrating and assisting the employees of appellant in understanding the same, was it under the control of the Clyde Iron Works. While under the contract between appellant and the Clyde Iron Works, it was 'Contemplated that the appellant should have the “services of a man to superintend and assist in the erection of machine,” the contract shows plainly that the services of this man were to be performed for appellant and that as to these services the man was appellant’s servant. The contract did not even require that the man should be a general servant of the Clyde Iron Works. For aught that appears in the contract to the contrary, appellant .might have employed any man to superintend ■and assist in the erection of the machine, regardless of whether he was in the general employ of the Clyde Iron Works or not. The contract only provided that pay for this service was included in the contract price which appellant had agreed to pay the 'Clyde Iron Works for the machine. The contract specified that the purchase price included the services of a man to “superintend and assist” in the erection of the machine, but it did not specify, and it was not necessarily implied, that such man should be selected or furnished by the Clyde Iron Works. The proof does not show that the appellant relinquished control over the work of erection and operation of the machine, nor the work of demonstration under the superintendence of Saltwick, in order to show appellant’s employees how they should operate the machine. The supreme control of the operation, of this machine at the time ■appellee received 'his injury was under appellant, and not the Clyde Iron Works. The latter company, as an independent contractor, owed appellee no duty; and if it had been sued along with the appellant, no judgment could have been recovered against it.
While the case of Tuttle v. Farmers’ Handy Wagon Co. et al., 144 N.W. 938" date_filed="1914-01-02" court="Minn." case_name="Tuttle v. Farmer's Handy Wagon Co.">144 N. W. 938, relied upon by the appellant, is quite similar in some of its. features, yet in essential particulars it is differentiated from the facts of the case at bar. In that case a man by the name of Clow had purchased from the Farmers’ Handy Wagon Co. a silo. By the terms of the contract “Clow was to relieve himself from the responsibility of superintending the work of erection, and had imposed that responsibility upon the company. Under the contract, the man to superintend the work was to be selected and paid by the company. Clow had no voice in his selection and was not given any control over him. * * * He was not directed to report to Clow for orders, nor to perform such duties as might be assigned him by Clow, but was sent to take charge of and direct the work for the purpose of fulfilling the obligation assumed by the company. So far as appears he acted wholly under and pursuant to the instructions of the company. jHe did not place 'himself under the orders of Clow, and Clow made no attempt to exercise control over him. # * * Assuming to act as the representative of the company, he took entire control of the work and of the workmen furnished by Clow at his request. ’ ’
Now, under the contract here, the facts are different. Here appellant’s general manager was on the ground. Its superintendent was present, directing its employees, and its skidder foreman was in 'charge of the skidder. Saltwick was merely superintending and “assisting” these men in the work of operating and demonstrating the machine after the -same had been erected. He was, as to that service, simply for the time being, loaned or furnished to the appellant, and appellant had full charge and control over 'him and all of its employees, including appellee, that were working at the time under the directions of Saltwiick. The facte are so closely 'analogous to the facts in the ciase of St. Louis, I. M. & S. Ry. Co. v. Gates, supra, as to make the doctrine of that ¡case applicable and controlling' here. Saltwicik ¡occupied the same relation to appellant here, that Claus did to the railway •company in the above case.
The court did not err in refusing to give an instruction on the law of contributory negligence. There was no evidence to warrant such an instruction. Appellant’s prayer for instruction on assumed risk was not in correct form and was not the law applicable to the facts proved.
The record is free from error, and- the judgment is therefore affirmed.