Estate of Stovall v. A. Deweese Lumber Co.

Holmes, J. On March 23, 1951, Ernest Dewey Stovall was killed on the premises of the A. Deweese Lumber Company in Neshoba County when he was assisting Johnny McKinnion in unloading a truck load of logs and one of the logs fell on him. Claim for compensation under the workmen’s compensation act was filed on behalf of the widow and minor child of the deceased against the A. Deweese Lumber Company and its insurance carrier, Consolidated Underwriters, predicated upon the ground that the deceased at the time of his death was an employee of the A. Deweese Lumber Company, and that his death arose out of and in the course of his employment.' — 835 — The attorney-referee denied the claim upon the ground that the relation of employer and employee did not exist between the deceased and the A. Deweese Lumber Company at the time of his death. The commission affirmed the action of the attorney-referee, and on appeal to the circuit court, the action of the commission was affirmed. This appeal is prosecuted by the claimants from the judgment of the circuit court. The sole question here involved is whether the deceased, at the time of his unfortunate death, was an employee of the A. Deweese Lumber Company or an employee of Johnny McKinnion, an independent contractor. There is no substantial dispute as to the material facts. In March, 1951, the International Paper Company, a New York Corporation doing business in Mississippi, sold and conveyed to the A. Deweese Lumber Company of Philadelphia, Mississippi, a quantity of storm damaged pine timber located on land in Leake County. The A. Deweese Lumber Company divided the timber into tracts of approximately 20 acres each, and arranged to have the timber cut into logs. It entered into a verbal contract with Johnny McKinnion to bunch, load and haul the logs on a certain designated tract which a representative of the lumber company pointed out to McKinnion on the ground. McKinnion was to be paid so much per thousand for bunching, loading and hauling the logs. He was to furnish his own truck and pay for the oil and gas used and for all expenses of operation. He hired his own laborers, among them the deceased, to bunch and load the logs, and required his laborers to furnish their own teams, tongs, snake hooks, and cant hooks. He paid his laborers $6.00 to $6.50 per thousand, and arranged with the lumber company to deduct from his pay the pay of the laborers and issue checks to them therefor weekly. The laborers usually left their teams in the woods at night, and sometimes some of them would — 836 — ride in on McKinnion’s truck to the lumber company mill and assist McKinnion in unloading the logs. It was on one of these occasions when the deceased was so assisting McKinnion that he was killed. . The lumber company was to furnish no equipment whatever. It had nothing to do with the hiring or firing of McKinnion’s helpers. It exercised no control over the deceased and others whom McKinnion employed, and no supervision over the manner and details in the performance of the work of bunching and loading the logs. It was interested only in the result of the work which McKinnion had been employed to perform. About once a week, a representative of the lumber company came into the woods and if he saw any logs which had been left in the woods, attention of the laborers was called thereto. He gave no directions as to the method, manner, or details of the work in bunching and loading the logs. When McKinnion was asked on the witness stand if the lumber company could terminate his contract at any time, he said he “supposed so”, but he had a contract “to haul that particular portion of timber.” The lumber company exercised no control over McKinnion as to the time he should work. He decided when to haul and when not to haul. He fixed the pay of his own servants, among them the deceased, and selected his own servants without suggestion or direction from, the lumber company, and directed their work without control or supervision on the part of the lumber company. We have in numerous cases, both in tort actions and under the workmen’s compensation act, set forth the several tests to be applied in determining the relationship of independent contractor. Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Hutchinson-Moore Lumber Company v. Pittman, 154 Miss. 1, 122 So. 191; Crosby Lumber and Manufacturing Co., et al v. Durham, 181 Miss. 559, 179 So. 285; McDonald v. Hall-Neely Lumber Company, 165 Miss. 143, 147 So. 315; Carr v. Crabtree, et al, — 837 — 212 Miss. 656, 55 So. 2d 408; Sones v. Southern Lumber Company, et al, 215 Miss. 148, 60 So. 2d 582; Simmons v. Cathey-Williford and Jones Co., 70 So. 2d 847. In Kisner v. Jackson, supra, the court said: “At last, and in any given case, it gets back to the original proposition whether in fact the contractor was actually independent. In our own more recent cases, it has been said that the important tests are whether the alleged ‘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, ’ and that he is not a master who has no ‘right to control the servant; and who is interested in the ultimate result of the work alone as a whole, but not in the details of the performance;’ and that ‘the main element required to constitute the relationship of master and servant is that the servant be subject to the control of the master in carrying on the business at the time of the injury.’ ” Of course the burden was upon the claimants to show that the deceased met his death while an employee of the lumber company. Smith, et al v. St. Catherine Gravel Company, et al, 71 So. 2d 221. The undisputed facts in this case reveal a total failure to meet .this burden. It is apparent to us from the undisputed evidence that there is present in this case every essential element necessary to establish the relationship of independent contractor between McKinnion and the A. Deweese Lumber Company. It is argued by the claimants, however, that the lumber company had the right to terminate the contract with McKinnion at any time, and that this evidenced a right of control over McKinnion and the work he was to perform. We do not think the facts show such right in the lumber company. It is true when McKinnion was asked if the lumber company could terminate his contract at any time, he testified, “I suppose so,” but he added he had a contract “to haul that particular portion of timber. ’ ’ In determining the right — 838 — of the lumber company in this respect, the contract itself is to be looked to and not mere supposition. The evidence without dispute shows that a definite contract was entered into between McKinnion and the lumber company to bunch, load and haul a particular tract of logs, and that McKinnion entered upon the performance of this contract and it is clear from the evidence that it was not subject to termination by the lumber company without cause before its completion. In Hutchinson-Moore Lumber Company v. Pittman, supra, the Court said: “Appellee’s contention that the contract should not be regarded in determining the relationship existing between appellant and Magee because, by its terms, no time was fixed for its completion, is without merit, for the contract plainly provides that Magee was to cut and deliver to appellant at its logging-road all the merchantable timber from the land specifically described in the contract.” Furthermore, this Court held in Crosby Lumber and Manufacturing Co., et al v. Durham, supra, and Kisner v. Jackson, supra, and Simmons v. Cathey, etc., supra, that the right to terminate is not conclusive of the relationship. In the Crosby case, the Court said: “The power given an employer under a contract for services to terminate it at will is a fact for consideration in determining whether the contract creates the relation of master and servant, but, of itself alone, is not determinative, and the mere fact that what logs Stock-still should haul were for the determination of Crosby Lumber and Manufacturing Company would not constitute such control over him as to make the relation between them that of master and servant. ’ ’ We are also of the opinion that proof of the fact that a representative of the lumber company came into the woods about once a week and called attention of the laborers to any logs which had been left in the woods affords no sufficient evidence that the lumber company — 839 — was vested with the right of control over the manner and means of doing the work. In this connection, we quote as pertinent the following from the opinion of the Court in the case of Regan et al v. Foxworth Veneer Co., 178 Miss. 654, 174 So. 48: ‘ ‘ The evidence for appellants, however, tended to show that two or three times a week Taylor, appellee’s vice-president and general manager, went into the woods where the logging was being done and made suggestions and gave directions as to how the work should be carried on. Taylor admitted that to be true, but testified that it was merely by way of advice, that he had no right to control the crew in any manner, that his plant was sometimes short of logs and his purpose was to hurry up the supply. One or more witnesses testified that Taylor suggested sometimes where it would be well to place the skidder, and his suggestions were followed. There was not a bit of evidence tending to show that under the contract Taylor had the right to exercise any control whatsoever over the manner and means of doing the work. The crew was bound to know from all the facts and circumstances that Ball Bros, was their master and not Taylor. ’ ’ We also quote as pertinent the following from the opinion of the Court in the case of Cook, et al v. Wright, 177 Miss. 644, 171 So. 686: “It is not necessary that an owner or employer, in order to avoid the responsibilities of master, shall entirely absent himself from the work, or entirely disassociate himself from an active interest, or an active aid in the course of its performance, or from a supervision of the results of that performance, so long as, in respect to the details of the work necessary, or proper, to be performed for the production of the net results required by the contract, the physical management of the instrumentalities used, and the physical conduct of those employed therein, remain under the sole — 840 — control of the contractor, or of those placed in authority by him or by his selection and direction.” The case of Regan, et al v. Foxworth Veneer Company, supra, which is strongly in support of the conclusions we have reached, enumerates among the tests for the determination of the question, ‘‘whose servant is this?” the following: “(1) the right to select the servant; (2) the right to discharge the servant; (3) the right to control the servant; and (4) he is not a master who is interested only in the ultimate result of the work as a whole and not in the details of the performance.” The evidence in the case before us wholly fails, in our opinion, to show any right in the lumber company to select the servant, or to discharge the servant, or to control the servant, and clearly establishes the fact that the lumber company was interested only in the ultimate result of the work as a whole and not in the details of its performance. We are not unmindful of the fact that in determining whether the relationship of employer and employee exists, a more liberal rule is to be applied under the workmen’s compensation act than in negligence cases, but it is clear to us that under the most liberal interpretation of the undisputed facts in this case the claimants have failed to meet the burden of showing that the relationship of employer and employee existed between the deceased and the lumber company at the time he was killed. It follows, therefore, from these views that the judgment of the court must be, and it is, affirmed. Affirmed. All Justices concur,' except Kyle, J., who dissents.