168 S.W.2d 198 | Ark. | 1943
The appellant, T. B. Rice, doing business as the T. B. Rice Lumber Company of Camden, Arkansas, has appealed from a judgment rendered against him in favor of the appellees, Hervey Sheppard, a minor, and J. A. Sheppard, his father, for damages on account of injuries sustained by the appellee, Hervey Sheppard, resulting from a collision on June 12, 1941, of a truck operated by A. T. Smith on highway No. 64 between Dyer and Mulberry, Arkansas, and an automobile driven by the appellee, Hervey Sheppard. Smith, the driver of the truck, jointly sued with the appellant, filed an answer, but did not testify or appear at the trial and has not appealed from the judgment against him.
The sole question to be determined by this court is whether or not there was any substantial evidence to sustain a finding that the driver of the truck which caused appellee's injury was the servant of the appellant. The contention of the appellant is that, in the operation of the truck at the time of the collision, Smith was an independent contractor; and the contention of the appellees is that, on this occasion, Smith was the servant of the appellant. It is a well settled rule in this state that where an independent contractor is employed to perform a work lawful in itself and not intrinsically dangerous, the employer, if not negligent in selecting the contractor, is not ordinarily liable for the wrongful acts or negligence of such contractor. St. Louis, I. M. S. Ry. Co. v. Gillihan,
There was no testimony as to the relationship of appellant and Smith except that of the appellant himself. *195 He testified that, at the time the collision occurred, he was a broker at Camden, Arkansas, buying and selling lumber, but not operating a sawmill; that he sold some lumber to the Robinson Lumber Company of Rogers, Arkansas, and engaged A. T. Smith to haul this lumber from the plant of the Partee Lumber Company, from whom he had purchased it, at Magnolia, Arkansas, and to deliver it at Rogers; that he had hired Smith to do other hauling for Rim, and that he had other parties hauling for him at the same time; that he had no employees except a stenographer and bookkeeper, and that when he sold lumber he hired a truck to haul the lumber at so much per thousand; that he agreed to pay Smith $4 per thousand for hauling this lumber and gave him a letter to the purchaser authorizing him to pay the driver of the truck freight on the basis of $4 per thousand and to deduct this amount when remittance should be made to appellant for the invoice; that he did not own any truck and when he got an order for lumber he would hire whatever trucker he could get; that he had no interest in the truck that Smith used, and had no employee driving it; that he did not direct Smith as to the means by which he should haul the lumber and had no control over the route over which he traveled; that he did not think Smith was operating under a schedule, and that Smith had only one or two trucks; that Smith told him he had a state permit to operate his truck and had liability insurance, but that, after the accident, appellant discovered that Smith did not have liability insurance and did not have a permit as a public carrier; that, before he employed Smith to haul for him, Smith was recommended by another lumber dealer as being reliable and trustworthy.
In the case of Moaten v. Columbia Cotton Oil Company,
When the rule laid down in the cases cited above is applied to the undisputed facts in the case at bar it must be held that Smith was an independent contractor and not the servant of Rice. There was no proof whatever offered to show that appellant was guilty of any negligence in selecting Smith as a hauler, and, since it affirmatively appeared from the evidence that Smith was an independent contractor, and not a servant of the appellant, the court erred in submitting the liability of the appellant to the jury. The facts in the case of Wright v. McDaniel,
For the reasons stated above, the lower court erred in not granting appellant's request for a peremptory instruction in his favor. The opinion of the majority of the court (in which the writer does not concur) is that the case has been fully developed, and that this cause should be dismissed. The judgment of the lower court is accordingly reversed, and the cause is dismissed.