Simmons Lumber Co. v. Zeiler

George Rose Smith, Justice. This is a death claim filed under the workmen’s compensation law by the widow and minor children of Opal Lee Zeiler, who was accidentally killed in the course of his employment on March 27, 1967. At the time of his death Zeiler was a sawyer cutting timber for his employer, Wendell Nelms, who in turn was a logger working under a contract with the appellant Simmons Lumber Company. The principal question for the commission was whether the primary liability for the Zeiler death claim rested upon Simmons and its insurance carrier or upon Nelms and his insurance carrier. The commission put the responsibility upon Simmons and its insurer, upon a finding of fact that Simmons had orally agreed to provide workmen’s compensation insurance coverage for Nelms and his employees. This appeal is from a circuit court judgment sustaining the commission’s decision. We hold that the judgment should be affirmed. Nelms testified that for some time prior to March, 1967, he had been cutting and hauling timber for Nebo Lumber Company at a contract price of $29 per thousand feet. Nelms was then carrying workmen’s compensation insurance upon his own employees, with Reliance Insurance Company. About two weeks before Zeiler’s death Nelms, with his men, began working for Simmons. Nelms testified that he and Mr. Simmons agreed upon a contract price of only $28 a thousand, instead of $29, because Simmons was to carry the compensation insurance. This is Nelms’s testimony upon that point: [Simmons] said, well, you ought to be able to knock off a dollar per thousand feet and us carry the insurance on it. I said, yeah, that sounds about right. It’d take that to pay the insurance. He said, well, now in the meanwhile we request you to carry liability on your truck, and we’ll carry workmen’s compensation on your crew, and that’s all there was to it. The appellants argue that the Simmons-Nelms agreement for compensation insurance coverage was not valid, principally because Simmons would not have agreed to provide the coverage if he had known that Nelms himself had a policy that was not to expire until about two months later. There was, however, certainly no fraud or concealment. According to the undisputed testimony, the two men simply made rio reference whatever during their discussion to the possibility that Nelms might have a policy of his own. Thus there is ample proof to support the commission’s finding that Simmons agreed to provide compensation insurance for Nelms and his crew. In fact, there is no evidence to the contrary. The validity of such an agreement is thoroughly established by our decisions. Hale v. Mansfield Lbr. Co., 237 Ark. 854, 376 S. W. 2d 670 (1964); Hughes v. Hooker Bros., 237 Ark. 544, 374 S. W. 2d 355 (1964); Stillman v. Jim Walter Corp., 236 Ark. 808, 368 S. W. 2d 270 (1963). It may be true, as thei appellants argue, that the Simmons compensation policy would not have prevented Zeiler’s dependents from bringing a wrongful death action against Simmons, as the prime contractor, had such a cause of action existed. Even so, that possibility does not entitle Simmons to repudiate its contract. Any such election would lie with the claimants, not with the primary contractor or its insurer. The appellants also contend that the full commission should have allowed them to introduce a deposition of Howard Simmons that was not taken until almost six months after the referee had handed down his decision in favor of the claimants. The commission held that, under its own procedural rules, the deposition was taken and tendered too late; for the referee would have received the deposition if it had been offered earlier. We find no abuse of discretion in that ruling. Moreover, in the deposition Mr. Simmons admitted with candor that if Nelms had testified “that he’d talked to you wanting $29 and that you offered him $28 and agreed to carry insurance,” that testimony would “likely be correct.” Thus no prejudice is shown, for Simmons corroborated Nelms upon the pivotal point of fact in the case. Affirmed. Jones, J., dissents.