Abbott v. Sumter Lumber Co. , 93 S.C. 131 ( 1912 )

Mr. Justice Fraser.

I concur in the result with Mr. Justice Hydrick and Mr. Justice Watts.

The sale of the timber and timber rights was to Mr. McLaurin, his heirs and assigns. I think that Judge Copes was right in holding that the defense of independent contractor was not permissible under the conveyance. If Stack was on the land not as the agent or servant of McLaurin, his heirs or assigns, then he was a trespasser ab initio and under a contract that he would trespass,upon the plaintiff’s land for the benefit of the defendant. The defendant received the benefit of the trespass and is responsible. It is not claimed that Stack was the assignee of the timber or timber rights. It is true it is stated in the evidence that Stack was an independent contractor, but that was a conclusion of law and fact and 'not a fact merely, and the statement was not evidence. The only statement of fact was as follows:

“What was that contract between the Sumter Company and Mr. Stack ? Stating for a price they would pay him to log timber and he furnish the team and cut it and put on board cars.”

Again: “What have you got to say about the Sumter Company going there and wilfully cutting it ? I can not say the Sumter Company did. They agreed to give Stack so much a thousand to cut the timber and put on cars.”

Again: “Did the Sumter Lumber Company have anything to do with the cutting? Nothing whatever.”

The only statement of fact was that Stack had agreed to cut and load the timber on the cars at six dollars per thousand feet.

It is true it is said that they did not interfere with Stack in cutting the timber, but the contract must give them no power to interfere and there was no such evidence here. I do not think the evidence was sufficient to make Stack an independent contractor. The defendant was engaged in manufacturing lumber and bought the timber and rights to enter upon the land and cut and remove the timber from McLaurin. Now, the fact that they made a contract with Stack to cut the timber and load it on the cars at so much per thousand feet was insufficient to show that Stack was an independent contractor. A laborer is not an independent contractor who agrees to cut and pile wood at so much per cord, even though his employer does not, as matter of fact, interfere with the cutting. Even if it had the right to send an independent contractor (which I do not believe), it must show by the nature of the contract that the person who did what it had the right to do was an independent contractor and not its agent or servant.

It seems to me that if a person would shield himself from the consequences of the negligent conduct of a department of his business, under the plea of independent contractor, the burden is upon him to prove all of the facts that make him, who would otherwise be a mere servant, an independent contractor.

I think Judge Copes was absolutely right in withdrawing from the jury the issue as to independent contractor. The statement that the company had no- right to- interfere in Stack’s cutting and loading the timber was in argument and not in evidence, and when complaint was made that Stack was improperly doing his work, they undertook to stop him and control.

I think the judgment ought to be affirmed.