Bardwell's Estate v. Perry Timber Co., 39467

Citation222 Miss. 854,77 So.2d 708
Decision Date07 February 1955
Docket NumberNo. 39467,39467
PartiesESTATE of Willie M. BARDWELL, Deceased, v. PERRY TIMBER COMPANY and Liberty Mutual Ins. Co.
CourtUnited States State Supreme Court of Mississippi

E. A. Turnage, R. G. Turnage, Monticello, for appellants.

Young & Daniels, Jackson, for appellee.

KYLE, Justice.

This case is before us on appeal by Mrs. Mora Mae Bardwell, surviving widow, and the three minor children of Willie M. Bardwell, deceased, from a judgment of the Circuit Court of Lincoln County affirming an order of the Workmen's Compensation Commission, denying the appellants' claims for workmen's compensation benefits under the Mississippi Workmen's Compensation Act, Chapter 354, Laws of 1948, and amendments thereto.

The record shows that the deceased, Willie M. Bardwell, was fatally injured in an accident which occurred about three o'clock p.m. on August 29, 1952, at the Laird sawmill, about eight miles west of Brookhaven, on U. S. Highway No. 84, at a time when the deceased was unloading a truck load of logs belonging to the Perry Timber Company. Bardwell was the driver of the truck and was preparing to unload the logs, and as he unloosed his binder three of the logs fell off on him. His body was crushed by the weight of the logs, and he died about one hour later.

The appellants' claims for death benefits under the Workmen's Compensation Act were denied by the attorney- referee and the compensation commission on the ground that the proof showed that Bardwell was employed by H. L. Dunaway, an independent contractor, and was not an employee of the Perry Timber Company, and that Dunaway at the time of Bardwell's death had only five employees including the deceased and did not have compensation insurance.

The facts in the case, as shown by the testimony of the witnesses, were substantially as follows:

The Perry Timber Company was the owner of a large sawmill in the City of Brookhaven. R. T. Perry was the manager and president. On July 28, 1951, the company purchased from Mrs. Marjorie Brown all timber, 12 inches or more in diameter, on a 210-acre tract of land in Section 25, Township 7 North, Range 8 East, in Lincoln County, known as the 'Marjorie Brown tract.' By the terms of the timber deed the grantee was allowed sixteen months within which to cut and remove the timber. Perry made arrangements with H. L. Dunaway, a logger of considerable experience, who had been working for Perry much of the time since 1943 or 1944, to cut and haul the timber. Dunaway owned a truck and tractor, also mules and a pair of tongs, axes and other tools and equipment necessary for the cutting and hauling of timber. Dunaway testified that he had bought timber at times in small tracts for himself, paying stumpage therefor, and had produced it himself. He employed three or four helpers and paid them himself, even when he was working for Perry. Dunaway testified that his agreement with Perry for the cutting and hauling of the timber on the Marjorie Brown tract was that he was to produce the poles and piling and deliver them at the mill for a sum equal to 45 per cent of their value and that he was to cut and haul the logs for $20 per thousand feet, log scale.

At the time Perry purchased the Marjorie Brown tract of timber Dunaway was engaged in cutting timber on another tract owned by Perry Timber Company near Hazlehurst; and Perry testified that at the time he was negotiating with the owner for the purchase of the Marjorie Brown tract of timber he and Dunaway had agreed that Dunaway should cut the timber if Perry succeeded in buying it. Perry also confirmed Dunaway's statement that it was agreed that Dunaway should receive 45 per cent of the market value of the poles and piling produced, and $20 per thousand feet for the logs as compensation for his services in cutting and hauling the timber on the Marjorie Brown tract. Dunaway went to work on the Marjorie Brown tract about two weeks after the timber deed had been delivered, and was still engaged in cutting and hauling timber from the Marjorie Brown tract at the time Bardwell was killed.

Bardwell had been working for Dunaway about three months at the time of his injury. Bardwell's regular job was running the loader, a logger's dream, which had been loaned to Dunaway by the Perry Timber Company. In addition to Bardwell, Dunaway had working for him three colored helpers. Dunaway usually drove the truck himself; but on the day Bardwell was killed Dunaway had a case of sickness in his family and could not drive the truck. For that reason Bardwell drove the truck with the load of logs to the Laird mill. Dunaway stated that Perry had nothing to do with Dunaway's hiring of Bardwell or any of his other employees. Dunaway and his helpers were the only timber cutters and loggers on the Marjorie Brown tract.

Dunaway stated that while nothing was said about Perry's right to fire him or about his right to quit when he started to work on the Marjorie Brown tract he went there with the intention of cutting the tract of timber, and it would have been wrong for Mr. Perry to have said to him that he would not be allowed to finish the job. But Dunaway stated that if Mr. Perry had told him to quit he would have quit, and if he had got ready to quit himself he would have just quit. Perry stated that while they had no written agreement about the matter, and while Dunaway could have quit any time he wanted to quit, the company did not have the right to stop Dunaway as long as he fulfilled his obligation. There was nothing said in the agreement about the company having the right to stop him. 'He had a perfect right to produce until that timber contract expired.'

As to Perry's right to control Dunaway's operations, Dunaway stated that Mr. Wilson, Perry's representative, was in the woods pretty often, but did not undertake to boss him. Mr. Wilson told him where to deliver the logs, which were not to be delivered at the Perry Timber Company yard. The hardwood...

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7 cases
  • Boyd v. Crosby Lumber & Mfg. Co.
    • United States
    • United States State Supreme Court of Mississippi
    • July 1, 1964
    ...389, 70 So.2d 847 (1954); Stovall's Estate v. A. Deweese Lumber Co., 222 Miss. 833, 77 So.2d 291 (1955); Bardwell's Estate v. Perry Timber Co., 222 Miss. 854, 77 So.2d 708 (1955); E. L. Bruce Co. v. Hampton, 225 Miss. 242, 83 So.2d 101 (1955); Ainsworth v. Long-Bell Lumber Co., 233 Miss. 38......
  • Wade v. Traxler Gravel Co.
    • United States
    • United States State Supreme Court of Mississippi
    • January 27, 1958
    ...independent contractor, and not that of an employee, including Carr v. Crabtree, 212 Miss. 656, 55 So.2d 408; Estate of Bardwell v. Perry Timber Co., 222 Miss. 854, 77 So.2d 708; Simmons v. Cathey-Williford & Jones Co., 220 Miss. 389, 70 So.2d 847, and Lawson v. Traxler Gravel Co., Miss.195......
  • E. L. Bruce Co. v. Hampton
    • United States
    • United States State Supreme Court of Mississippi
    • November 7, 1955
    ...Co., Miss.1955, 78 So.2d 111; Simmons v. Cathey-Williford-Jones Co, 1954, 220 Miss. 389, 70 So.2d 847; Bardwell's Estate v. Perry Lumber Co., Miss.1955, 77 So.2d 708; Stovall's Estate v. A. Deweese Lbr. Co., Miss.1955, 77 So.2d The judgment of the circuit court, as previously stated, was si......
  • Marter v. Cathey-Williford-Jones Lumber Co.
    • United States
    • United States State Supreme Court of Mississippi
    • October 17, 1955
    ......225 Miss. 118. J. H. MARTER, Administrator, Estate of Cecil Marter,. Deceased,. v. CATHEY-WILLIFORD-JONES ... It owned extensive tracts of timber. It cut in the woods and hauled to the sawmill its own ... Co., Miss., 70 So.2d 847, and Bardwell's Estate of Perry Timber Co., Miss., 77 So.2d 708.         We do not ......
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