75 So. 962 | Ala. | 1917
The cause was tried on the fourth count, which alleged that plaintiff was working in defendant's mines as an employé of an independent contractor. Defendant pleaded the general issue in short by consent, with leave to give in any evidence tending to establish any special defenses, etc.
Whether one performing a service is a servant or an independent contractor is held to be determined by whether or not the person for whom he is working "has control over the means and agencies" by which the work is done (Warrior-Pratt Coal Co. v. Shereda,
However complex the system of mining or mine operation may be, and whatever the agencies employed toward the accomplishment of the result in view, the relation assumed in a given employment therein is easily ascertained if tested by the rule of all the cases — that the independent contractor represents the will of the owner or employer only as to the accomplished result; while the servant must accomplish that result through the means or agencies provided for him by the master, or in the manner prescribed or required and directed by the master's will. Ala. W. R. Co. v. Tally-Bates Const. Co.,
Assignments of error 4 and 5 challenge the refusal of the defendant's requested affirmative charge. The complaint alleges that the plaintiff was not a servant of the defendant, but was working on said premises as an invitee, being there employed by an independent contractor. Under the foregoing decisions, and in the light of the evidence showing that plaintiff was a servant of defendant, there was a variance. T. C. I. R. R. Co. v. Davis, supra. When the affirmative charge was requested in writing by the defendant, the attention of the court was called to the fact that the charge was so requested on the specific ground that the evidence showed that plaintiff was a servant of the defendant at the time of sustaining his injury, and not an invitee, as alleged.
It results that the judgment must be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.