#### Taylor v. Arkansas Light & Power Company.

Opinion delivered May 2, 1927.

*870 Martin, Wootton & Martin and Sydney S. Taylor, for appellant.

Robinson, Rouse <& Moses, for appellee.

Hart, C. J.,

(after stating the facts). The circnit court was right in directing a verdict for the defendant. The case is controlled by the principles of law. announced in St. Louis, Iron Mountain & Southern Ry. Co. v. Boyle, 83 Ark. 302, 103 S. W. 744. In that case it was held that, under Kirby’s Digest-, § 5856, reserving the control in the State of convicts hired out, a railroad company is not liable for the tortious act of -a State convict in injuring an employee of the riailroad company. In that case the court recognized that the relation of master and servant rests upon a contract of service between the parties, the essential elements of which are that the master ©hall have control of the employee and the right to direct the manner in which the service shall be perf ormed.

The same statute was in force at the time McKinnon was hurt in the case at bar. The contract of employment expressly provided that the convicts should be guarded and worked under the direction of a warden employed by the State. The State clothed, fed and guarded the convicts and directed their movements while they were at work. The servants of the defendant would point out to the warden what ground was to be cleared, and the warden directed the movements of the convicts in cutting down the trees. ' The defendant had no control over the persons of the convicts, and they worked under the State’s own officers, who were there to guard and care for the men in the performance -of their labor. The defendant only had the right to designate what work was to be done, but the warden in charge of the convicts had the exclusive right to guard and direct the convicts in the performance of their work. Hence, under the principles of law laid down in. the case above cited, the relation of master and servant did, not exist between the defendant *871and McKinnon at the time the tree fell upon him and caused his death.

It is not like the ease where the proprietor of a mill or a mine, where convicts have 'been sent to work, fails to nse ordinary care to keep the instrumentalities and the place of work in safe condition. Here they had only a prima facie right to designate the work to be done, and the State warden directed the convicts in the performance of their work.

But it is urged that the principles of law in that case are changed because, under § 9694 of Crawford & Moses’ Digest, it is provided that the Penitentiary Commission shall not hire cut or lease, or permit any person to hire out or lease, any of the convicts of this State to any person or persons whomsoever. In Green v. Jones, 164 Ark. 118, 261 S. W. 43, it was held that a contract leasing convicts to a corporation to construct the dam in question was in violation of this section of the statute, although the physical control and custody of the convicts were under the supervision and control of guards and wardens appiointed by the Penitentiary Commission. It was said that the public policy of the State was to prevent the leasing of convicts to persons or corporations to be worked by them for private gain. We are not afole to see, however, how the holding in this ease could in any wise change the principles decided in the case first cited. There was no right or duty of control in the defendant in the present case, and there.was no negligence in failing to provide safe instrumentalities or a safe place in which to work. The defendant simply told the State warden what trees were to be cut down, and the State warden had exclusive control of the convicts in directing their methods of work.

It follows that the judgment of the circuit court will be affirmed.