#### Hamblin’s Adm’x v. Gatliff Coal Co.

May 5, 1939.

J. B. JOHNSON for appellant.

TYE, SILER, GILUS *&*SILER and T. E. MAHAN for appellee.

Opinion op the Court by

Judge Stites

Affirming.

This is an appeal from a judgment of the Whitley Circuit Court dismissing the petition of the appellant, Sarah Hamblin, administratrix of the estate of Leq *249Hamblin, deceased, against tbe appellee, Gatliff Coal Company. In December, 1937, Lee Hamblin was killed by a falling tree. Tbe petition here involved was filed against tbe appellee and also against one Marshall Lambdin. It is alleged that Lambdin, under tbe direction, control, and supervision of tbe Gatliff Coal Company, supervised tbe work of felling and sawing timber for the purpose of making mine props and other necessary lumber for the operation of appellee’s mine, and that, at tbe time of tbe injuries resulting in bis death, tbe deceased was engaged as a laborer “by tbe said defendants.” It was asserted that deceased was killed as a result of tbe negligence of tbe defendants, their agents, and servants, in tbe manner in which they felled the tree which struck tbe deceased. Tbe appellee filed a separate answer containing five paragraphs. By tbe fifth paragraph, appellee pleaded that its co-defendant, Marshall Lambdin, was not an employee of tbe coal company, but was an independent contractor with whom it bad a written contract for tbe purchase of ties, preps, capboards, and jack-posts, at specified prices. A copy of tbe written contract between tbe appellee and Lamb-din was filed, as an exhibit with tbe answer. Tbe appellant filed a reply in which she denied that tbe written contract between tbe appellee and Lambdin was in effect at tbe time complained of in tbe petition; and denied that tbe deceased, Lee Hamblin, was not an employee of tbe Gatliff Coal Company. By an amended reply directed specifically to tbe fifth paragraph of tbe answer, it was asserted that appellee was under a duty to provide lumber for its mines and that tbe appellee attempted to evade this duty by tbe contract set out in tbe answer through having Marshall Lambdin furnish tbe timbers, “and that tbe said defendant knew that Marshall Lamb-din was not financially responsible and any one employed by him would be unable to recover damages from him due to bis negligent acts and that tbe said Marshall Lambdin is not financially able to satisfy a judgment in favor of tbe plaintiff herein and was not when tbe contract was made and that the work requii ed to be done in tbe case given to tbe said Marshall Lamb-din in felling timbers and execution of the same is necessarily a hazardous (work) and that injurious results may reasonably expect to follow.”

Appellee filed a demurrer to this amended reply. Tbe court sustained tbe demurrer and appellant de*250dined to plead further. Thereupon the petition was dismissed and this appeal followed.

It is obvious that the court did not err in sustaining the demurrer. Whatever duty might rest on appellee to furnish timber for use in its mines was performed when the timber was furnished. Appellee might manufacture the timber itself or it might purchase the completed product. If it chose to purchase the timber manufactured and ready for use, it is manifest that it was under no obligations to the employees of the manufacturer. Glover’s Administrator v. James, 217 Ky. 572, 290 S. W. 344.

A more serious question is presented by the action of the court in dismissing the petition after the demurrer, which was addressed simply to the amended reply, had been sustained. It will .be observed that the original reply, in its response to the fifth paragraph of the answer, tendered an issue of fact as to whether or not the contract between Lambdin and the appellee was in effect at the time of the accident. The amended reply, however, admitted the existence and force of the contract but sought to avoid its efficacy upon an untenable ground. Appellant in her original reply simply denied that the contract was in force without undertaking to say why it was not in force. Certainly the court had the right to consider all of the pleadings and to assume that the final amendment expressed appellant’s settled position. There was no occasion to revivify the traverse in the original reply when it had, to all intents and purposes, been withdrawn by the inconsistent amendment, and the state of the pleadings as thus presented fully justified the court in sustaining the demurrer as it did. Appellant elected to stand on the demurrer so that the question here presented really narrows down to a determination that if the contract was in effect then it furnished a complete defense to appellant’s claim in the absence of some other facts in avoidance. As we have seen, the attempt to avoid was destitute of merit. We are thus left with an admission of the existence of the contract and the indisputable fact that by its terms appellee had nothing to do with the timber other than to buy it when manufactured. Obviously appellee owed no duty_ to the deceased the violation of which would authorize recovery on the record here presented.

Judgment affirmed.