{ "id": 1614224, "name": "C. & L. Rural Electric Cooperative Corporation v. McEntire", "name_abbreviation": "C. & L. Rural Electric Cooperative Corp. v. McEntire", "decision_date": "1949-12-19", "docket_number": "4-8970", "first_page": "276", "last_page": "288", "citations": [ { "type": "official", "cite": "216 Ark. 276" }, { "type": "parallel", "cite": "225 S.W.2d 941" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "279 S. W. 4", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "170 Ark. 92", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1371585 ], "opinion_index": 0, "case_paths": [ "/ark/170/0092-01" ] }, { "cite": "205 Ark. 193", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1488137 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/205/0193-01" ] }, { "cite": "21 S. W. 2d 441", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "180 Ark. 253", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1393561 ], "opinion_index": 0, "case_paths": [ "/ark/180/0253-01" ] }, { "cite": "115 S. W. 2d 1087", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "195 Ark. 1114", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726332 ], "opinion_index": 0, "case_paths": [ "/ark/195/1114-01" ] }, { "cite": "92 S. W. 793", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "77 Ark. 551", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1499061 ], "opinion_index": 0, "case_paths": [ "/ark/77/0551-01" ] }, { "cite": "197 Ark. 99", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718299 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/197/0099-01" ] }, { "cite": "197 Ark. 131", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8718748 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/197/0131-01" ] } ], "analysis": { "cardinality": 1024, "char_count": 22808, "ocr_confidence": 0.507, "pagerank": { "raw": 1.9896154859291052e-07, "percentile": 0.7415847410408869 }, "sha256": "dbacb2cbfedc532714de71b7c658b1b41357f0509043100b88e11d16e6980e11", "simhash": "1:0994810e38aa15a4", "word_count": 3717 }, "last_updated": "2023-07-14T19:41:58.287119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mr. Justice Leelar and Mr. Justice Dunaway dissent from the Court\u2019s action in affirming the judgment as to C & L Rural Electric Cooperative Corporation. Mr. Justice George Rose Smith did not participate in the consideration or determination of the case." ], "parties": [ "C. & L. Rural Electric Cooperative Corporation v. McEntire." ], "opinions": [ { "text": "Griffin Smith, Chief Justice.\nMcEntire, a construction company employe, was seriously burned and permanently impaired when he came in contact with an electrically-charged wire. Three defendants have appealed from his judgment for $40,000.\nC & L Rural Electric Cooperative Corporation operates in Lincoln and other counties as owner of transmission lines and appurtenances. It had an extensive reach in 1947 when new demands prompted expansion. Existing installations had been built by three contractors, one being Delta Construction Company of Clarksdale, Miss. The Federal Government advanced $363,000 through Rural Electrification Administration, acting by an Administrator whose official status with C & L was evidenced by written contract embracing enumerated standards of efficiency. The Administrator required C & L, in its plan for expenditure of the money, to retain certain authority. A supervisor could be named by the Government agency, and the contractor was bound to comply with all reasonable directions that might be given, either by C & L, or the supervisor.\nDickinson & White, electrical engineers, were employed by C & L to draft expansion plans with specifications ; also to let the contract on behalf of C & L, and to supervise construction. Dickinson & White employed E. A. Knoch and Warren A. Ramsey to oversee the work, Delta having procured the contract.\nOn the nineteenth of June, 1947, McEntire, who was then 26 years of age, met with the misfortune resulting in the litigation. A primary wire on the pole he had climbed carried 7620 volts of undisclosed amperage. His inadvertent contact with it caused burns that later destroyed tissues, nerves, and the circulatory structure of each hand, necessitating amputation four or five inches below the elbows when infection developed. Continuing pain prompted a second operation on the left arm. Comparatively slight injuries to other parts of the body attended the accident, with partial blindness for several hours.\nPaul Strode was a Delta superintendent who worked in close cooperation with Knoch and Ramsey. Delta\u2019s temporary offices in Star City were within two or three blocks of quarters occupied by C & L.\nOn the morning of the nineteenth McEntire\u2019s assistant was Clinton K. Baggett. Each would make wire connections when directed to do so. The duty immediately at hand took them twelve miles south on the Star City-Monticello highway where they left the main thoroughfare and went by a known route to Pole No. 249. The place had been designated by Work Order No. 314, prepared by Ramsey and given to Strode. Pour poles were mentioned in the order, but we are concerned only with what was done when No. 249 was reached. Pertinent parts of the memorandum are shown in the footnote.\nWhen the clean-up note was issued, Ramseyq Strode, Delta, Dickinson & White, and C & L, knew that the pole was \u201chot,\u201d or they were in possession of facts or had access to data from which the information could have been had.\nIt will be observed that in sequence of transactions Rural Electrification (the Government) dealt with C & L; C & L employed Dickinson & White; Dickinson & White, on behalf of C & L, negotiated the contract with Delta, but also employed Ramsey; Ramsey prepared the inspection or work orders and gave them to Strode, who was Delta\u2019s man, and Strode gave them to appellee. The questions are: Were Dickinson & White independent contractors employed by C & L? If the contract on its face tended to create that relationship, was it the purpose to restrict activities of Dickinson & White to the paper preliminaries, such as plans and specifications, procurement of the contract, and supervision of the contractor\u2019s work as to results alone, and without participation in or interference with the means and methods by which results were accomplished? (a) Was the contract Dickinson & White made for C & L with Delta, embracing as it did express implementation through services of these Engineers, trilateral as to scope \u2014 thus insuring overlappings throughout, or (b) did C & L and Dickinson & White as employer and agent, and Delta as the producer of a finished construction, each leave to the other complete freedom of action regarding means and methods? Conversely, if the contracts as such were legally sufficient to make Dickinson & White independent Engineers and Delta an independent contractor, did inter-party actions destroy this design to such an extent that the appellants are bound by the misconduct causing appellee\u2019s misfortune?\nContract Between C $ L, and Dichinson $ White.\u2014 The Engineers agreed to render necessary services \u2018 \u2018. . . in respect of rephasing, conversion, rebuilding, or rehabilitation of existing lines, [and] the enumeration of specific duties and obligations . . . shall not be construed to limit the general undertakings of the Engineer. \u2019 \u2019\nSupervision of construction required the Engineer to inspect all materials and to reject any found inferior to specifications. The Engineer was also to supervise \u2018 \u2018 the manner of the incorporation of the materials in the project and the workmanship with which such materials shall be incorporated. . . . The Engineer shall notify C & L and the Administrator when the project, or any part thereof, shall be ready to be energized. Whenever C & L and the Administrator shall notify the Engineer that the project, or snch section thereof, may be energized, the Engineer shall, when directed to do so by C & L, cause the project, or such section thereof, to be energized. \u2019 \u2019\nContract Between C & L, and Delta \u2014 All materials, tools, machinery, equipment, labor, transportation, \u201cand other means necessary [to fulfillment of the contract]\u201d were to be supplied by Delta. All reasonable precautions for the safety of employes engaged in the work were to be taken, with care for safety of the public. Prom commencement until completion, or until C & L should take possession if at an earlier date, control was with the Contractor, who was responsible for \u201call risks in connection with the construction of the project and the materials to be used therein.\u201d The Contractor was obligated to constantly supervise all work. To this end a competent Superintendent \u201cwould be present at all times during working hours where the construction is being carried on, [and] directions and instructions given to [such] Superintendent by the Engineer shall be binding on the Contractor. [C & L] reserves the right to require the removal from the project of any employee of the Contractor if in the judgment of the Engineer such removal shall be in order to protect the interest of [C & L]. The Engineer or the Supervisor, if any, shall have the right to require the Contractor to increase the number of his employes and to increase or change the amount or kind of tools and equipment if at any time the progress of the work shall be unsatisfactory to the Engineer or Supervisor.\u201d\nPurpose of the Contracts. \u2014 The undertakings contemplated by C & L in 1947 could best be carried out with Grovernment cooperation and borrowed money. But rules of Rural Electrification were such that it could not, or would not, advance funds without retaining the interim control it thought would be necessary to assure satisfactory completion of the project, hence the requirement regarding Engineers. This is made certain by language in the contract between C & L and Delta that \u201cPrior to the completion of the project C & L, upon written notice to the Contractor, approved in writing by the Administrator, may test the construction . . . hy temporarily energizing any section or sections thereof. During the period of such test the section or sections of the project so energized shall be considered as within the possession and control of C & L, \u201d etc. In a paragraph of definitions \u201cEngineer\u201d is one employed by C & L, \u201cwith the approval of the Administrator, to supervise the construction of the project.\u201d \u201cCompletion\u201d means full performance by the Contractor, evidenced by a certificate . . . signed by the Engineer \u2018 \u2018 and approved in writing by the Administrator.\u201d Other language discloses an intent that Rural Electrification should exercise a measure of control throughout the construction period, and this control was something more than a right to demand that the work, when done, should meet all specifications.\nActs and Circumstances Affecting Appellee. \u2014 Transactions directly connected with appellee\u2019s attempt to make repairs on Pole No. 249 were these: When Strode, as Delta\u2019s servant, handed McEntire the clean-up order prepared by Ramsey, there was nothing to indicate that the pole carried \u201chot\u201d wires. On former occasions similar orders had affirmatively shown that \u201clive\u201d wires were to be dealt with when that condition existed; hence McEntire assumed it would be safe to climb at the time he did to discharge the task assigned.\nAppellee testified that when a note was received showing hot wire connections, he marked it \u201cREA,\u201d which meant that C & L employes were to do the work. This custom was verified by Lynn Thomasson, C & L manager, who testified that on occasions the Engineer issued such clean-up orders and gave them to Strode, with copies to C & L. Question: \u201cAt the time you received these copies did you go immediately and deenergize the line and wait for the work to be done, or did you wait?\u201d Answer: \u201cWe would wait for the Superintendent to notify us when he would be ready to do that particular job \u2014 I mean Strode, Delta\u2019s Superintendent.\u201d Question: \u2018 \u2018 Tell me whether, to your knowledge, a large or a small number of clean-up notes would be issued daily?\u201d Answer: \u201c. . . After Delta built a line, the Engineers would come back at their convenience, I believe, and make the final inspection \u2014 no, not the final, [but] an inspection. [They would] then issue notes to the Contractor, and then they would go again after they had made the clean-up, to make the final inspection.\u201d\nFrom Thomasson\u2019s testimony it would seem that Ramsey, or some one acting for him, had inspected Pole No. 249 and discovered necessity for the repairs later intrusted to McEntire. Ramsey conveyed this information to Strode in a clean-up note.\nOn the question of prompt attention to siich notes, Thomasson said it was possible for Strode or some other Superintendent to receive a clean-up note, attended by failure of the sender to supply C & L with a copy, and still the work might be performed. Question: \u2018 \u2018I am talking about a case where you [did] receive a copy \u2014 -a copy, let us say, that is dated today: was there any way for you to tell when the work would be done by Delta? \u201d Answer: \u201cNo.\u201d\nThere was this further testimony by Thomasson: \u201cI believe you said that a copy of the clean-up notes would be delivered to you?\u201d Answer: \u201cThat is right. They were supplied by Dickinson & White, [but] came through the mail.\u201d The copies were\u2019 retained in the C & L files.\nIt was Ramsey\u2019s practice, or the practice of others acting for Dickinson & White, to show on the clean-up notes, when live wires were to be encountered, that the work ordered to be done was on an \u201cexisting\u201d pole. To Thomasson such a notation meant that the pole was \u201chot.\u201d When a memorandum of this kind came it was placed in the construction file. There was no further action until the Contractor notified C & L when that work would be done. A copy of the notice relating to Pole 249 was actually received by C & L and was placed in the Company\u2019s files. Question: \u201cIf you have a copy [of the clean-up note] . \u25a0. . and there is no notation saying existing pole, would you take that to mean it was a \u2018cold\u2019 pole?\u201d Answer: \u201cYes, sir.\u201d [Later Tliomasson said he did not receive the note in question until after the accident.]\nIt was C & L\u2019s duty to \u201cdeaden\u201d or \u201cdeenergize\u201d a pole when information came that it was to be worked -on. Tliomasson verified a statement he made soon after the accident occurred: \u201cPole 249 was part of a line turned over to ns and energized a year ago. All of [our] employes were, of course, aware of this. Whether the Engineer knew of this, and took it into consideration when having the final work done on this \u2018tie-in,\u2019 I do not know. \u2019 \u2019\nDefending counsel, in addressing the trial Court, argued that there was no evidence showing that Dickinson & White or their employes directed McEntire to work on this pole, or that they had a right to do so. On the contrary, the attorney thought it had been clearly developed that the Engineer\u2019s duty was to tell the Contractor \u201cwhat remained to be done.\u201d In other words, said he, the clean-up notes [sent by Ramsey to Strode, and by Strode given to McEntire] were informal in character. They were not orders or \u201cdirectives\u201d; neither were they instructions \u2014 hence, it was error to assume that the Engineer commanded appellee to work on a specified pole.\nDangerous Instrumentality \u2014 Absolute Liability. \u2014 - While Courts in general recognize the dangerous potentiality of electricity, affirmance of this case is reached without extending to those dealing with it the doctrine of non-delegability in respect of construction. There are many situations where a builder like C & L could appropriately pass to another full responsibility to produce a result like the one objectively planned here; nor is there anything in the nature of the work making it impracticable for a promoter or owner to employ engineers in an independent capacity under a contract to inspect and advise, short of participation in means and methods. Many cases involving master and servant, and employer and independent contractor, are cited in Moore and Chicago Mill & Lumber Co. v. Phillips, 197 Ark. 131, 120 S. W. 2d 722. The principles affirmed in that case are not affected by our findings here that under the facts Dickinson & White \u2014 (capable engineers fully competent to let the contract for C & L, and able to apply under the contract all details of inspection requisite to compliance with Delta\u2019s commitments) \u2014 engaged in managerial activities somewhat in excess of engineering work, as under the contract it became their duty, and served in a liaison relationship with the Government, with C & L, and with Delta. Intrusive and overlapping acts compose a course of conduct inconsistent with aloofness from means-and-method participation. This may have been necessary because of the Government\u2019s insistence on following its loan to the completed system. In supplying construction cost with one hand, Rural Electrification\u2019s fundamental purpose to develop retarded areas with the other, could\u2014 from the agency\u2019s point of view \u2014 be more substantially served by fixing on the borrower express obligations, including a right to say what kind of supervision there should be, and on what evidence the Contractor would be acquitted at work\u2019s end. Although the Government contract with C & L is not in the record, these matters are satisfactorily disclosed by portions of the Dickinson & White undertakings on behalf of C & L.\nSpecific and General Acts. \u2014 Bearing in mind that No. 249 was an \u201cexisting\u201d pole, one energized and in use forunore than a year, some consideration must be given to Dickinson & White\u2019s right of interference, or their duty to supervise and make safe, the identical instrumentality that caused injury.\nSupplementary to engineering work on the new installations, Dickinson & White were under a duty, in case of necessity, to \u201crephase,\u201d convert, rebuild, or rehabilitate the old lines. The enumeration of specific duties entrusted to them would not limit the general undertakings. Assuming that \u2018\u00a3 general undertakings \u2019 \u2019 were those to be implied from the nature of the project, yet collateral to this so-called over-all conception there was a separate contract for construction. It included the inspection of materials and rejection of those thought to be inferior, or perhaps a warning to the Contractor that if used in snch circumstances, final approval would be withheld. But the manner of putting materials into the project, and the workmanship \u201cwith which such materials shall be incorporated\u201d were duties imposed on the Engineer. While these words might not of themselves, in all cases, deprive a contract of its independent status, additional support for a three-way tie-in is found in the contract between C & L and Delta.\nBy affirmative language the Contractor was bound to do some of the same work required of Dickinson & White, that is, \u201cto constantly supervise all work.\u201d This was assured by Delta\u2019s promise to have a competent Superintendent present \u201cat all times during working hours where the construction is being carried on.\u201d Directions and instructions given Delta\u2019s Superintendent by Dickinson & White were binding on the Contractor. Not only this, but C & L (not Dickinson & White) could remove from the project any person employed by the Contractor if the Engineer thought this action would protect C & L\u2019s interests. Finally, the Engineer could require the Contractor to increase the number of employes, augment the equipment used, \u201cor change the amount or kind of tools,\u201d etc. \u2014 the only condition precedent being that work progress was not satisfactory to the Engineer.\nIndependent Contractor, Master and Servant. \u2014 In defining independent contractor, Mr. Justice Donham said in Wilson v. Davison, 197 Ark. 99, 122 S. W. 2d 539, that we had repeatedly held that \u201c. . . it is the right to control and direct that determines' whether one is a servant.\u201d In support of the statement attention was called to St. Louis, Iron Mountain & Southern Ry. Co. v. Gillihan, 77 Ark. 551, 92 S. W. 793, where Mr. Justice McCulloch\u2019s language was: \u201cIn general, . . . the liability of the company depends upon whether . . . it has retained control and direction of the work.\u201d The Wilson-Davison opinion was handed down Nov. 28, 1938. The Moore-Chicago Mill case, supra, came three weeks later and cited the G-illihan decision, but not Wilson v. Davison. In April, 1938, which, of course, was before Wilson v. Davison, Mr. Justice Donham wrote the opinion in Meyer v. Moore, 195 Ark. 1114, 115 S. W. 2d 1087. He quoted Mr. Justice Butler\u2019s language in Ice Service Co. v. Forbess, 180 Ark. 253, 21 S. W. 2d 441: \u201cThe conclusion as to the relationship must be drawn from all the circumstances in proof; and, where there is any substantial evidence tending to show that the right of control over the manner of doing the work was reserved, it becomes a question for the jury whether . . . the relationship was that of master and servant.\u201d\nIn writing the opinion in Rice v. Sheppard, 205 Ark. 193, 168 S. W. 2d 198, Mr. Justice Robins used Moore Lumber Co. v. Starrett, 170 Ark. 92, 279 S. W. 4, as authority for the proposition that in determining whether a person employed to do a certain task is an independent contractor or a mere servant, the vital test is the control reserved by the employer in respect of the work that is to be done.\nThus, it does not appear that mere retention of the right to require the contract-holder to discharge an unsatisfactory employe, or to increase or decrease the number of those working on the job, is alone sufficient to change what was honestly intended by all parties to be an independent contract, and convert it into a master and servant status. Retention of the right is merely a circumstance to be considered with other evidence. Of course the case would be different if the actual fact of discharge or substitution contributed directly to the injury.\nThe instructions here left it to the jury to find (a) whether C & L knew that McEntire and others were at work on its lines, or (b) whether, in the exercise of ordinary care, 0 & L should have anticipated that Delta workers might be at Pole 249 at the time in question; (c) whether Ramsey issued the clean-up notes with the intent that Delta servants should act upon them, and that previously such' notes had shown whether wires on a pole indicated for attention were energized; (d) whether the work order issued by Ramsey was insufficient. to put McEntire on notice that the premises were dangerous, and (e) whether, if such failure to warn were found, it constituted negligence when considered with other facts and circumstances, thereby constituting the proximate cause of plaintiff\u2019s injuries. If these things were found to be true, and McEntire was not guilty of contributory negligence, a verdict could be rendered against Dickinson & \"White, and C & L.\nIt is our view that the course of conduct admitted by Thomasson, when considered with the contracts and other evidence, justified the jury in considering, (a.) the consequences that might reasonably have been anticipated when clean-up notes were sent by mail to an address not more than three blocks away; (b) logical inferences arising from C & L\u2019s admission that after receiving the notes it would remain inactive until Delta\u2019s Superintendent gave a second warning showing with exactness when the danger would be approached; (c) the independent fact that C & L, and its servants only, had a right to neutralize the lines; (d) whether there was causal connection between Ramsey\u2019s failure to designate No. 249 as an \u201cexisting pole,\u201d 0 & L\u2019s admitted practice of awaiting word from Delta after certain work had. been indicated, and McEntire\u2019s actions in response to the note Strode gave him; (e) whether C & L, as a party to the way \u201cexisting\u201d poles were being shown, and cognizant of the risk a worker ran in responding to written directions to work on one, knowingly allowed Delta to disregard its duty to keep a superintendent constantly on the job \u201cwhere work was being done,\u201d and finally whether (f) in condoning Delta\u2019s neglect to maintain such supervision, and in entrusting collateral duties to Dickinson & White, there was failure to exercise on behalf of appellee that degree of care required by the relative situations of the parties and the facilities each had in respect of the other.\nAffirmed.\nMr. Justice Leelar and Mr. Justice Dunaway dissent from the Court\u2019s action in affirming the judgment as to C & L Rural Electric Cooperative Corporation. Mr. Justice George Rose Smith did not participate in the consideration or determination of the case.\n\u201c. . . Pole No. 249. Lower El-2 for proper cond-clearance. Complete A-6 assembly on north and south line. Install El-1 on north side of pole.\u201d\nA nonsuit was taken as to Knoeh. Delta, protected under Workmen\u2019s Compensation Law, was not a defendant. American Casualty Company, Delta\u2019s insurer, intervened to claim rights of reimbursement.", "type": "majority", "author": "Griffin Smith, Chief Justice." } ], "attorneys": [ "S. Hubert Mayes and Rose, Robyns, Meek S House, for appellant.", "Brockman $ Brockman and Bridges, Bridges, Young & Gregory, for appellee." ], "corrections": "", "head_matter": "C. & L. Rural Electric Cooperative Corporation v. McEntire.\n4-8970\n225 S. W. 2d 941\nOpinion delivered December 19, 1949.\nRehearing denied February 6, 1950.\nS. Hubert Mayes and Rose, Robyns, Meek S House, for appellant.\nBrockman $ Brockman and Bridges, Bridges, Young & Gregory, for appellee." }, "file_name": "0276-01", "first_page_order": 300, "last_page_order": 312 }