McDonald v. Hall-Neely Lumber Co.

Anderson, J., delivered the opinion of the court. Appellant brought this action in the circuit court of Union county against appellee to recover damages for personal injuries received by her, caused by a collision between a truck driven by B. J. Gray and an automobile in which she was traveling. At the conclusion of the evidence the court directed a verdict and judgment for appellee. Prom that judgment appellant prosecutes this appeal. Whether the court erred in directing a verdict for appellee depends on whether Gray, the driver of the truck, was a servant of appellee or an independent contractor. The evidence out of which the question arose is undisputed. At the time of appellant’s injuries and for some time prior thereto, appellee was engaged in the manufacture of lumber with its plant at New Albany in Union county. The logs which it manufactured into lumber were bought from various owners in Union and surrounding counties. It bought the merchantable timber on Porter Bay’s land in Pontotoc county. Porter Bay cut the timber and hauled and piled the logs on the public highway leading to New Albany. Appellee contracted with Gray and two other persons to haul these logs to its mill, agreeing to pay them so mrfch per thousand feet. While Gray was carrying out his part of the contract, the collision and injuries occurred. At the time of the collision, Gray’s truck, driven by him, was loaded with some of the *151 logs on its way to New Albany to appellee’s plant. Gray was a public hauler in and around New Albany, and between that place, and Memphis and other points. The contract between Gray and appellee was verbal. As stated, Gray’s compensation was so much per thousand feet for all logs he hauled. He was to haul no specified number of logs, and was to haul when it suited him. The agreement was that he was to furnish his own truck and his help. In other words, he was to bear the entire expense incurred by him in hauling the logs. In making the trips he sometimes drove his truck, and sometimes he employed another to drive it. Appellee had no control whatever over the manner, method, or means of hauling the logs. The only control appellee had over Gray’s operations was where he should get the logs and the place he should unload them at the mill. One of the early cases involving this question is New Orleans, B. R., V. & M. Railroad Company v. Norwood, 62 Miss. 565, 52 Am. Rep. 191. In that case the court said that numerous tests had been suggested for the determination of the question, “whose servant is this;” that among those tests were the following: “(1) The right of selecting the servant; (2) the right to discharge the servant; (3) the right to control the servant;” and the court further said “that he is not a master who is interested in the ultimate result of the work done as a whole, but not in the details of its performance.” In Callahan Construction Co. v. Rayburn, 110 Miss. 107, 69 So. 669, 670, the court said: “An ‘independent contractor’ is one who renders service in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.” In Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21, in discussing this question the court said that the main element required to constitute the relation of master and servant is that the servant is subject to the control *152 of the master in carrying on the business at the time of the injury. The.holding in this case was reaffirmed in Hutchinson-Moore Lumber Co. v. Pittman, 154 Miss. 1, 122 So. 191. In Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156, stress was laid on the word control. The court held in that case that the relation of master and servant ordinarily exists where one may control the work of another and direct the manner of doing it, and that an independent contractor is one representing the employer only as to the net result of the work, and not as to the means of doing it. In Kisner v. Jackson, 159 Miss. 424, 132 So. 90, 91, in discussing this question, the court said: ‘ ‘ There are several tests to be applied, the weight of each, and whether much or little, rising and falling in the scale as it may or may not be counterbalanced by one or more of the remaining tests, present in the particular case in hand.” The court then proceeded to set out several tests, among which are the following: “Whether he [the employer] has the right to prescribe and furnish the details of the kind and character of work to be done. . . . Whether he has the right to direct the details of the manner in which the work is to be done.” In the present case appellee contracted with Gray for a certain net result, namely, the placing on appellee’s mill-yard in New Albany such of the Ray logs as Gray chose to haul; the manner and means and expense of doing the work being left entirely to Gray. The relation of master and servant does not exist, unless the alleged master has some sort of substantial control over the means and methods of carrying out the contract. What logs Gray should haul and where he should place them did not constitute such control by appellee. If appellant’s contention were upheld it would lead to most mischievous and unjust consequences. For illustra- ' tion: A has a trunk in a railroad baggage room; he engages a public drayman to deliver the trunk to his res *153 idence, for which he pays the charge of fifty cents; in making the delivery the drayman negligently injures a child on the street; the owner of the trunk would he liable. The case of Hinton & Walker v. Pearson, 142 Miss. 50, 107 So. 275, involved the construction of section 2240, Code 1930, giving a lien, for their wages, to timber men and sawmill employees on the product of the mills for which they worked. The facts in that case were much like the facts in the present case. The court held that the haulers of the lumber were not independent contractors, but servants, and entitled to the lien given by the statute. The court held that the word employee in the statute included a larger class than mere laborers. If presented the court might have decided that the statute applied to independent contractors as well as laborers and employees; that it would be necessary to give it that construction in order to carry out its purpose. In other words, the court might have decided that the word employees in that statute had as broad a meaning as the same word in section 2238. The decision in that case therefore is not overruled, except as to the ground upon which it was based. Disregarding that ground the decision may be sound. We are not now called upon to decide whether it is or not. Affirmed.