Sloss-Scheffield Steel & Iron Co. v. Gardner ( 1920 )

Where testimony is immaterial to the issues involved in the trial of a case, it is not always easy of ascertainment, whether its admission constitutes prejudicial error. The same is true where witnesses are permitted to testify to conclusions. Where the detail facts are all testified to, by the witness testifying to the conclusion, the court can usually determine whether rule 45¹ should be applied or not, but the safe rule, in the trial of all cases, is to confine both parties to the rules of evidence requiring the statement of facts and not conclusions. Where, however, one party has been permitted to introduce evidence of conclusions, the other party is entitled to rebut in like manner with testimony as to contra conclusions; when plaintiff, over the objection of defendant has introduced illegal testimony, he cannot be heard to object to its rebuttal in kind. Clement v. Cureton, 36 Ala. 120.

This court, in the case of New Farley National Bank v. Montgomery County, 85 So. 31,² has declared what it conceives to be a correct statement of what it takes to constitute an independent contractor, and in that case has collated the line of decisions bearing on that question, and in Coal City Mining Co. v. Davis, 81 So. 358,³ this court, following a line of authorities there cited, held that:

"A master employing an independent contractor is not liable for an injury to an employé of the independent contractor who was under the direction and control of the independent contractor at the time of the injury."

In line with these authorities the defendant asked in writing charge 16, as follows:

"(16) The court charges you that, if you are reasonably satisfied from the evidence that Mr. Lon Tyler had a contract with the defendant for the purpose of taking out ore, and was an independent contractor in the sense that defendant reserved no right to interfere with the details of Tyler's work, but only to require this to be done by Tyler and those under him whom he had employed, so as to conform to the general plans of the mine and mining rules, then the court charges you that the defendant would not be responsible to plaintiff for injuries resulting from the negligence of said Tyler, if you believe he was negligent."

And charge 6, as follows:

"(6) The court charges you that, if you are reasonably satisfied from the evidence that the man under whom plaintiff was working when hurt, viz. Lon Tyler, bore such a contractual relation to the defendant company that he was subject to the control of the defendant company only as to the result of his work, and not as to the means and agencies by which it was accomplished, in that event said Lon Tyler was an independent contractor, and the defendant would not be liable in this case."

Charge 16 was held to be good in Porter v. T. C. I. Co.,177 Ala. 406, 59 So. 255, and we are of the opinion that charge 6 asserts a correct proposition. Harris v. McNamara,97 Ala. 181, 12 So. 103. There was evidence from which the jury might conclude that plaintiff was injured while working for an independent contractor and was under the direction and control of such contractor at the time of the injury. If this was so, the defendant was not liable in this case, and the jury should have been so instructed. The charges were neither argumentative, misleading, nor abstract, and the refusal to give them as requested was error.

Under the facts in this case, as in the case of Coal City Mining Co. v. Davis, supra, it was a question for the jury to say whether Lon Tyler, the employer of plaintiff, was an independent contractor, or whether the arrangement between the defendant and Tyler was a mere subterfuge, to cover a real contract of hire, whereby Tyler was in reality defendant's superintendent.

It is unnecessary, we think, to pass upon the other assignments of error; the foregoing being sufficient to guide the circuit court on another trial.

For the errors pointed out, the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

¹ 175 Ala. xxi, 61 South. ix.

² Ante, p. 297.

³ Ante, p. 22.