86 So. 2d 307 | Miss. | 1956
On February 23, 1954, Dean, the appellee, was severely injured while unloading lumber from a truck upon the lumber yards of Fruitdale Lumber Company at Prichard, Alabama. He filed a claim against Fruitdale and its insurance carrier for compensation for his injuries under the Mississippi Workmen’s Compensation Law. Chapter 354, General Laws of Miss., 1948, as amended by Chapter 412, General Laws of Miss. 1950.
Fruitdale and its carrier denied liability. They said that Dean, at the time of his injury, was not an employee of Fruitdale; that he was a servant of H. H. Connell, who, in his relation to Fruitdale, was an independent contractor. The attorney-referee, the full commission, and the circuit court found that Connell was not an independent contractor, but that, on the other hand, Dean was an employee of Fruitdale within the meaning of the Workmen’s Compensation Act, and that, therefore, Dean was entitled to compensation from Fruitdale. From the judgment of the circuit court, this appeal was taken by Fruitdale and its carrier.
Counsel say in their briefs that the only question now presented to us on this appeal is whether or
In Kisner v. Jackson, 159 Miss. 424, 132 So. 90, this Court specified certain factors to be considered in determining this question: “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. For this reason these tests cannot be stated in any precise order of importance, but they are as follows: Whether the principal master has the power to terminate the contract at will; whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; whether he furnishes the means and appliances for the work; whether he has control of the premises; whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; whether he 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 supervise and inspect the work during the course of employment; whether he has the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the subemployees and to fix their compensation; and whether he is obliged to pay the wages of said employees. These are the tests, as we think, and any other, if differently stated, may be brought within one of those above briefly set out.” See Sones v. Southern Lumber Company, supra. In the recent case of Miss. Employment Security Commission v.
(a) The extent of the control which the master has a right to exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the skill required in the particular occupation; (d) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the person is employed; (f) the method of payment; and (g) whether or not the work is a part of the regular business of the employer. Factors, other than those above detailed, may be involved under the intricate, complex commercial relations existing today. Perhaps the most important single fact in determing the relations is the right, or power, of control one has or exercises over the supposed servant or employee.
Fruitdale says it had an oral agreement with H. H. Connell under which Connell was to haul from the George County mill to the principal mill at Prichard the lumber which was manufactured at the George County mill, for which service Connell was to be paid by Fruitdale six dollars per thousand feet, Connell to furnish his own vehicles, equipment, and labor for doing the work, with the exclusive right and power to hire, control and discharge such labor, and that Connell orally contracted with Dean, the appellee-claimant, to thus haul the said lumber, and that Connell furnished to Dean a truck for such transportation of the lumber, and had exclusive control over Dean while Dean was doing the work, and that Dean was such employee of Connell at the time of his injury. On the other hand, Dean says he was, in ultimate effect, an employee of Fruitdale within the purport of the Workmen’s Compensation Act.
H. H. Connell testified that he was forty-seven years of age and lived in Mobile; that he made the oral agreement with Fruitdale to transport lumber from George County mill to Prichard, and Fruitdale was to pay him six dollars per thousand feet for the lumber so transported, he furnishing all the means and paying all expenses of transportation; that the agreement covered no specific time; that he orally agreed with Dean to transport the lumber at five dollars per thousand feet, he furnishing to Dean a truck for that purpose; that when he engaged Dean to do this work Dean was working for Fruit-dale ; and that at first Dean alone unloaded his truck at destination but later he furnished Dean a helper in the' unloading on the yards at Prichard. This helper used a machine called a logger’s dream, which was the property of Fruitdale, and that he, Connell, paid his helper fifty cents a load but paid nothing for the use of the logger’s dream. Connell said Dean selected his own route of travel in transporting the lumber, and that Dean had instructions to call him or Mrs. Connell in case of truck trouble, but if he couldn’t get one of them, then to call Fruitdale. He kept social security records as an employer of Dean and furnished to Dean a form for making income tax reports, but apparently no income tax report was made by Dean, his income not being sufficient to require such report. At one time he, Connell, purchased a sick and accident insurance policy for Dean payable to Mrs. Dean, but that had lapsed. On direct examination, he said that neither Lindsey nor Campbell (composing the partnership of Fruitdale Lumber Company) had any power to direct the work of Dean or discharge him; and that he only had that right and power.
J. H. Dean testified that he lived in George County. He was thirty-six years of age. Before his arrangement with Connell, he had been in the employ of Fruitdale for some four or five years. He said at first he was “Just a flunky boy”; later he performed various duties, in-
His contract was for no specified time and it was his obligation to haul as often as necessary to keep the traps at the George County mill sufficiently clear of lumber
T. W. Cornett testified that he is a brother-in-law of Dean. When Dean was injured, Cornett was operating the George County mill under an arrangement with Fruitdale that he would be paid a certain amount per thousand feet of the lumber cut by Cornett from logs of Fruitdale. Cornett said he hired, paid and directed his own labor, but he also testified that Fruitdale had control. “I obeyed their orders. Carried out their orders.” Q. “What they told you to do, you did!” A. “To the best of my knowledge.” Fruitdale advanced money for the Cornett operations. Fruitdale made out the weekly payrolls for Cornett, at its Prichard mill, and Dean transported them each Friday to the George County plant. In March, 1951, Dean went to work for Connell. Dean was the only one who hauled lumber from the George County plant except that sometimes the company truck would haul some. At the time Dean was injured, Connell was superintendent of the mill at Cottage Hill. He thought that Dean was working for Connell but also said that if Lindsey directed Dean to go to some certain place Dean would have to do so to keep his job. Connell cautioned Dean about permitting anyone to ride on the truck. He never heard Lindsey direct Dean as to what to do or what not to do. However, he was of opinion that Dean would have complied with any direction or request which Lindsey or Campbell might have given about Dean’s work. He admitted that Dean brought the payrolls from Prichard, and other articles and equipment needed at tlae George County mill, including the diesel motor.
Mr. George Lindsey testified that he was a partner with Campbell in the ownership and operation of the three sawmills; and that he had an oral understanding with Connell to haul the lumber from the George County mill to the Prichard plant, and “bring back” any parts
Mr. Charles T. Campbell testified that he kept the books of Fruitdale Lumber Company and that Lindsey looked after the outside activities. Fruitdale made the arrangement with Connell to haul logs from George County mill to the Prichard mill. Connell was paid at
Mr. R. J., Green was placed upon the stand in rebuttal by claimant Dean. His testimony is of no practical value.
Claimant Dean also placed upon the stand in rebuttal Hubert Berry. He was twenty-nine years of age and lived near the George County mill. He said Connell drove the hauling truck but got hurt and then, as he understands, Connell made an arrangement with Dean to do the hauling. However, he said Connell scaled logs three months as an employee of Fruitdale at the George County Mill after Dean started his truck-hauling operations.
From all of this rather intricate, interrelated and interlocking relationship the lower tribunals adjudged that Connell was not independent of Fruitdale in the hauling of this lumber. Can we say that conclusion was manifestly wrong? We do not think so. We do not feel it is necessary to undertake a detailed analysis of the situation. We attach much importance to two undisputed situations. One is the underlying structure disclosing the relations between these parties before this hauling arrangement began. Fruitdale was a large operator, — it owned and operated three large sawmill plants. It, of course, from time to time had many employees. Both of the parties here concerned, Connell and Dean, had been employees of Fruitdale in different capacities for many years, during which time Fruitdale was master and Dean and Connell were servants. Under the hauling arrangement, the work was being done for Fruit-
The other undisputed fact of much importance, in our opinion, is that Connell was superintendent of the mill at Cottage Hill at the time Dean was doing this hauling and at the time Dean was injured. Appellants contend Fruitdale could have discharged him as superintendent but not as an independent contractor. They say, too, that Connell could have controlled and directed Dean, as to hauling lumber from Cottage Hill mill, in a dual capacity, as superintendent of the plant and a servant of Fruitdale, and as a contractor with Dean, independent of any control by Fruitdale. In Carroll v. Laughlin and Sons, et al., 220 Miss. 535, 71 So. 2d 461, we said: “Where there exists a dual relationship of employee and contractor, and the authority and duties of the employee embrace the same subject matter as the contract, the court will not attempt a theoretical determination of whose control is being exercised in the performance of the contract. The right of control of the employer and independency of the contractor cannot coexist.” We realize that this principle applies only to the lumber which was hauled by Dean from the Cottage Hill mill, of which Connell was superintendent, but the fact of such hauling, and the existence of the announced principle, weigh heavily upon the question of whether Dean was an independent contractor.
In addition to the foregoing two important facts, the Commission had before it the testimony tending to establish that (a) Dean was directed by Mr. Lindsey to haul to various destinations other than Prichard; (b) that Lindsey gave Dean instructions as to the size of lumber to be hauled on particular occasions; (c) that
It was the province of the lower tribunals, under the evidence in this record, to reconcile, weigh and accept or reject, the testimony where conflicts appear therein, and draw logical and reasonable conclusions from the facts so adjudged and accepted by them.
Upon thorough consideration of the entire record, we are not able to say the lower tribunals did not have substantial evidence to support their findings and conclusions.
Affirmed and remanded.