Weeks v. Seale, 108 So. 505

Weeks v. Seale

108 So. 505 | Miss. | 1926

^* Corpus Juris-Cyc. References: Logs and Logging, 38 CJ, p. 223, n. 52 New; p. 236, n. 50; Lien of Laborer on Logs, see 17 R.C.L., p. 1118. The appellee brought this action in the court of a justice of the peace of Carroll county against appellant under chapter 131 of the Laws of 1908 (Hemingway's Code, sections 2415 to 2417, inclusive), as amended by chapter 282 of the Laws of 1922, to establish a lien on certain saw logs found in the possession of appellant, the purchaser from the owner of the logs, from Ward, for the payment of his alleged services in hauling the logs for Ward from the woods where cut to the railroad for shipment. The amount involved is fifty-four dollars. The appellee recovered a judgment in that court for the amount sued for, from which judgment the appellant appealed to the circuit court, where there was another trial and a verdict and judgment for appellee for the same amount, from which judgment appellant prosecutes an appeal to this court. *228

The appellant requested a directed verdict in his favor, which request the trial court declined to grant. That action of the court is assigned as error. The view we take of the case makes it unnecessary to consider any of the other assignments of error.

The statute under which the action was brought, follows:

"That every employee or laborer of a person, partnership, or a corporation engaged in operating a saw mill, planing mill, or in cutting and shipping (or rafting) timber, shall have a lien on all such lumber and timber of his employer for his wages due by such employer in preference to all debts due and owing from the owner thereof, but such lien shall take effect as to purchases or incumbrances for a valuable consideration, without notice thereof only from the time of commencing suit to enforce the lien.

"Sec. 2. That the lien herein provided may be enforced and trial and judgment had in the same manner as the lien for purchase money is enforced under the provisions of the chapter on lien for purchase money of goods.

"Sec. 3. That the lien hereby created shall expire six months after the claim is due unless judicial proceedings have commenced to assert it.

"Sec. 4. That all laws or parts of laws in conflict with this act are hereby repealed."

It will be observed that the only amendment of the statute made by chapter 282 of the Laws of 1922 is that the lien is made to run without judicial proceedings six months from the time the claim is due instead of three months, as provided in the act amended.

The case turns on whether or not appellee was an "employee or laborer" in the meaning of the statute. Appellant's contention is that the evidence showed, without conflict that appellee merely hired his teams to Ward the owner of the logs; that the latter himself loaded the logs on the wagons, drove the teams, and unloaded *229 the logs at the railroad, none of which labor was performed either by appellee or any employee of appellee. On the other hand, appellee contends that there was a conflict in the evidence as to whether appellee performed any of the labor of hauling the logs in person or through an employee.

The only witnesses who testified on this issue of fact were appellee and Ward, who was put on the witness stand by appellee. Appellee's testimony was as follows:

"Q. At the time this claim arose, did you have an agreement with him (Ward) to perform this service? A. Yes, sir.

"Q. Then you were an employee of Mr. Ward? A. Yes, sir."

Ward testified emphatically that appellee did not do the hauling, but that he hired the teams of appellee at twelve dollars a day for four and one-half days, and drove them, and, therefore, did the hauling himself; in other words, that the witness performed all the labor of hauling, using appellee's teams. As we view the evidence, there was no conflict on this issue between the testimony of appellee and that of his witness, Ward. Appellee's testimony was indefinite as to whether he contracted to do, or did, any of the labor of hauling the logs personally or by employee. He testified that he agreed to perform the service of hauling the logs, and that, therefore, he was an employee of Ward, the owner, in the hauling of the logs. Evidently he had in mind that the service of his teams was his service, and that the employment by Ward of his teams was his employment. Appellee did not expressly state in his testimony that he did the hauling himself, nor does his evidence exclude the existence of the fact that the labor of loading the logs on the wagons, driving the teams, and unloading the logs from the wagons was done by some one other than appellee or an employee of his. Therefore, we think appellee's testimony, as a witness in his own behalf, taken as true, was not in conflict with the testimony of his *230 witness, Ward, as to who loaded the logs on the wagons, drove the teams, and unloaded the logs from the wagons.

The question, therefore, is whether or not one who hires his teams to another to haul saw logs to the railroad for shipment, but neither performs in person nor through an employee any of the labor of hauling, is an employee or laborer in the meaning of the statute. Construing this statute in Hinton and Walker v.Pearson (Miss.), 107 So. 275, it was held that, where a person agreed with a sawmill owner to furnish teams and drivers and haul lumber for him to the railroad for shipment at so much per thousand feet, he was an employee, and entitled to the benefit of the lien provided by the statute. We think the material difference between that case and this is that in that case the plaintiff was employed to haul the lumber, furnishing all the necessary labor and teams for the purpose, while in the present case the appellee was to furnish no labor, either of himself or any employee of his, but simply hired his teams to the owner of the logs, who furnished all the labor of loading the logs on the wagons, driving the teams, and unloading the logs from the wagons at the railroad. It is true appellee's teams were employed in the hauling, but he was not. He did none of the labor of hauling. He was, therefore, neither an employee nor a laborer in the hauling of the logs. The statute should not be extended beyond its language and purpose. We think the court went far enough in favor of the claimant of a lien under this statute in the case above referred to.

We hold, therefore, that the appellee, under the statute, was neither an "employee or laborer," and, therefore, not entitled to the lien provided in the statute.

Reversed, and judgment for appellant. *231