216 Miss. 640 | Miss. | 1953
Appellants, Minnie Nelson and two dependent step-grandchildren of deceased, Andrew Nelson, filed their claims for workmen’s compensation before the Mississippi Workmen’s Compensation Commission for the death of Andrew Nelson, husband and step-grandfather of appellants. Appellees, J. W. Slay and his compensation insurance carrier, Liberty Mutual Insurance Company, contested the claims. Appellants are dependents of deceased and his death arose out of and in the course of his work. The only question is whether there is substantial evidence to support the finding of the attorney-referee that Andrew Nelson was not an employee of J. W. Slay. The claims for compensation were denied by the attorney-referee, the Commission, and the Circuit Court of Franklin County.
J. W. Slay lives in Brookhaven and is engaged in the business of buying pulpwood. He buys only in freight car lots from about twenty-five different producers of pulpwood. He sells it to Gaylord Container Corporation in Bogalusa, Louisiana. The general method of handling-purchases of such pulpwood is to have the person who is producing and selling- it to him to load a freight car which has been placed on a siding by Slay. This general practice was followed in the case of Andrew Nelson, who was loading such a car and selling pulpwood to Slay on July
Slay had purchased carloads of pulpwood from Nelson on ten different occasions in the year 1949. Slay testified that Nelson was one of the many persons from whom he purchased pulpwood; that he arranged for the freight car to be placed at a designated siding for Nelson to load in July 1949; that in addition to Nelson obtaining the timber rights for himself, Nelson hired his own employees, paid them himself, and had the sole right to hire and fire them; that Nelson owned his own truck, determined his own routes for hauling the timber, furnished his own equipment to cut and load the wood, and otherwise managed all of his activities in cutting and loading the pulpwood. Slay did not go to the Butler tract to see what Nelson was doing, and did not supervise or have the right to supervise Nelson’s activities. He did not know who or how many employees Nelson had, nor did he prescribe any routes for Nelson to follow or tell Nelson when and where he could work. When there was any delay in loading the car, the railroad’s charge of demurrage was paid by the producer, Nelson. Nelson did not work regularly in loading wood on cars in behalf of Slay. The car which was being loaded at Nelson’s death on July 29th was the first car of pulpwood that Nelson had sold to Slay since
Slay had owned a truck which Nelson purchased from him. After a few months Nelson was not making payments to Slay on it, so Nelson got a bank to loan him the money on it with which to pay Slay, and Slay endorsed Nelson’s note to the bank. Nelson bought the license for his truck which was in use at the time of Nelson’s death. From time to time Slay “stood” for repair bills on the truck for Nelson, but on the settlements between Slay and Nelson the amount thereof would be credited to Slay. Slay, in his settlements with Nelson after a purchase of a carload of pulpwood, would also deduct therefrom the monthly payments of $100 which Nelson owed the bank, and would remit those installments to the bank. Slay paid Nelson a unit price for each cord of pulpwood bought.
When the car would be loaded by Nelson, a bill of lading would be obtained from the railroad, and Slay would be designated in it as the consignee at Bogalusa. The wood would then be shipped to Slay at that address. He sold it to Gaylord Container Corporation, which would scale it and pay Slay for it. When the bill of lading would be filled out to Slay as consignee, he would advance about $100 to the producer, Nelson here. After Gaylord computed what it owed Slay for the carload, it would deduct from that amount the state timber sever
A policy was issued to Slay by appellee, Liberty Mutual Insurance Company, naming J. W. Slay as “employer,” making no reference to Nelson or anyone else, and stating as a “classification of operations” of Slay the following:
“Logging or Lumbering — pulpwood exclusively —including transportation of logs tó mill; construction, operation, maintenance or extension of logging roads or logging railroads; Drivers, Chauffeurs and their Helpers. (Mill operations to be separately rated).”
After Nelson’s death on July 29th, Slay made an “Employers First Report of Industrial Injury” to the Workmen’s Compensation Commission on August 1st. This report, a printed form, filled in by Slay, designated him as “employer” and the “injured employee” as Andrew Nelson. Slay testified that he purchased the policy to protect himself and Andrew Nelson, and other contractors or persons from whom he purchased pulpwood; that a similar deduction for the pro rata premium for each seller of pulpwood was made with the various pulpwood sellers; that the purpose of the policy was to cover his employees and those of Nelson’s and other sellers of pulpwood; that at that time in the pulpwood industry there was considerable doubt as to the extent of the application of the statutory employee provision of the Workmen’s Compensation Act.
Most of the testimony as outlined above is substantially uncontradicted. The essential problem is to determine the proper legal conclusion from these facts. Slay was simply a purchaser of this pulpwood from Nelson. Nelson arranged for the timber on the Butler tract, furnished his own equipment and truck, hired and fired his own employees and controlled all of his operations in cutting the timber and loading it on the freight car. Slay did not supervise the cutting operations on the Butler tract and had no right to do so. He had nothing to do with hiring Nelson’s employees, nor did he prescribe any routes or details in Nelson’s performance. He was interested only in the end-result, a freight car loaded with the proper type of pulpwood. That Nelson was a vendor rather than an employee is further evidenced by the fact that Nelson sold pulpwood for several months before his death to other purchasers of that commodity. The fact that Slay sold Nelson a truck and assisted him in financing it is a circumstance, but here not a material one, in determining the relationship of the parties. Reeves v. Muskogee Cotton Oil Company, 187 Okla. 539, 104 Pac. 2d 443 (1940). Also a circumstance to be considered, but not determinative in the light of all of the other evidence,, is the method of financial settlement between the parties,
Also a fact to be considered but not controlling here is that Slay, in his settlements with Nelson and the numerous other producers of pulpwood from whom he bought, deducted each producer’s, including Nelson’s, pro rata part of a workmen’s compensation policy premium insuring Slay. The premium rate was 32 cents per cord, without reference to payroll or to whom the pulpwood was purchased from or who was covered. No reference was made to Nelson in the policy and its apparent purpose was to protect Slay from a possible judicial determination that he was a statutory employer of an injured employee of Nelson or of other producers. The report of the accident which Slay made to the Commission on August 1st, in which Nelson was designated as an “employee,” must be weighed in the light of, and against all of the other evidence in this case. When that is done we do not think it would suffice to change the manifest relationship of vendor-vendee to that of employee-employer.
A somewhat analogous recent decision finding the existence of a vendor-vendee relationship is Taylor v. Employers Mutual Liability Insurance Co., supra. To the same effect in principle are Harris v. Southern Kraft Corp., 183 So. 65 (La. 1938); Wilson v. Roberts, 194 So. 88 (La. 1940); Hatch v. Industrial Lbr. Co., 199 So. 587 (La. 1941); Williams v. George, 15 So. 2d 823 (La. 1943); McDonald v. Hammond Box Co., Inc., 17 So. 2d 39 (La. 1944); De Bose v. Kelly, 37 So. 2d 382 (La. 1948). Appellants rely upon Sones v. Southern Lbr. Co., 60 So. 2d 582 (Miss. 1952), which involved entirely different facts.
Contractual relationships of the types involved in the present and the cited cases must be carefully scrutinized for an objective determination of the factual agreement between and the legal status of the parties. The arrangement here was in good faith and apparently customary in this industry. It was not a subterfuge designed to evade the Workmen’s Compensation Act. Although evasions of coverage under the act should not be permitted, courts must balance the terms of this legislation against the rights of persons to create a legitimate contractual relationship of vendor-vendee.
Affirmed.