Beck v. Dubach Lumber Co., Limited

• Decision Date: 03 November 1930
• Docket Number: 28067
• Citation: 131 So. 196,171 La. 423
• Court: Louisiana Supreme Court
• Parties: BECK v. DUBACH LUMBER CO., Limited, et al

131 So. 196

171 La. 423

BECK v. DUBACH LUMBER CO., Limited, et al

No. 28067

Supreme Court of Louisiana

November 3, 1930

Rehearing Denied December 1, 1930

Appeal from Third Judicial District Court, Parish of Lincoln; S.D Pearce, Judge.

Action by Jehu Beck against the Dubach Lumber Company, Limited, and another. Judgment for defendants, and plaintiff appeals.

Affirmed.

J. B Crow, of Shreveport, for appellant.

Dhu Thompson, of Monroe, for appellees.

OPINION

THOMPSON, J.

This an action for damages alleged to have been caused by the careless, negligent, and wrongful acts of the employees of the Dubach Lumber Company and Dubach Mill Company in cutting and removing the timber from certain lands of the plaintiff described in the petition.

It is alleged that the Dubach Lumber Company, having purchased certain timber on plaintiff's land, entered upon the land about January 1, 1924, for the purpose of cutting and removing the said timber to its mill to be manufactured into lumber, and continued such operations until the early part of September, 1924.

It is alleged that in cutting and removing said timber the said Dubach Lumber Company and the Dubach Mill Company, their officers, agents, and employees, negligently, unwarrantedly, and unnecessarily trespassed upon and injured and destroyed certain portions of petitioner's property, and grossly injured and tore down and destroyed property situated on said land wholly without excuse or justification.

It is further alleged that defendants, their officers, agents and employees, unnecessarily and negligently tore down petitioner's fencing, damaged the wire and posts surrounding his fields, hauled through and tore up the farm lands then in cultivation, obstructed petitioner's private roads leading from his home to his farm and meadow, destroyed portions of his farm land, and grossly and negligently threw, and caused to be thrown and left, on the farm lands, numerous treetops which injured the farm land and prevented the land from being cultivated in 1924.

And further that the treetops thrown and left on the land through the negligence of defendants became ignited and produced a conflagration which destroyed a forest belonging to petitioner of 120 acres, and a peach orchard and two tenant houses.

The defendants, after certain exceptions were filed and overruled, answered denying any liability, and alleged that the cutting and removing of the timber from plaintiff's land was done by one George Jeffus and T. R. Woods, who were independent contractors, and for whose acts the defendants were not liable.

This defense was sustained by the trial court, and plaintiff's demand was rejected.

The evidence shows that the plaintiff on February 14, 1921, sold to the Dubach Lumber Company, for $ 1,100 cash, all of the merchantable timber on the lands described in the petition. The lumber company was allowed three years from September 11, 1922, in which to remove the timber.

The company was given the right of ingress and egress for teams and vehicles on said land and the right to construct tramways over said land for the purpose of removing the timber.

The Dubach Lumber Company owned a sawmill and planing mill which it leased to the Dubach Mill Company, and which the latter operated on its own behalf, paying for the logging of the mill and all expenses incident to the operations. The lumber company, however, furnished the timber to its lessee.

In July, 1922, the Dubach Mill Company sold to one George Jeffus all of the logging teams and all appurtenances thereto for the sum of $ 12,000, of which $ 2,000 was paid in cash, and the balance was to be paid in monthly installments of $ 500 each.

In the same contract Jeffus agreed to deliver, and the mill company agreed to accept, not less than 1,500,000 feet and not more than 1,750,000 feet of logs per month.

The price the mill was to pay for the timber delivered on its tramway was $ 3.50 per thousand feet for the first half mile haul, 37 1/2 cents per thousand feet for each additional quarter of a mile haul up to one and one-half miles, and 25 cents for each quarter of a mile haul thereafter.

The mill company was to furnish from time to time specifications for the cutting of the timber. The contract was to continue for two years from its date, but, should either party desire to terminate the contract, notice in writing was required to be given the other party at least 60 days in advance of the termination of the contract.

A similar contract was entered into by the Dubach Mill with one T. R. Woods.

Under these contracts Jeffus and Woods caused to be cut and delivered to the Dubach Mill Company the timber from the plaintiff's land.

The evidence clearly shows that the two contractors had absolute and exclusive control of the cutting and delivery of the timber.

They furnished their own teams and loggingoutfit. They employed their own labor. At times as many as one hundred and fifty men were employed.

The laborers were carried on the pay rolls of Jeffus and Woods. The wages were fixed and paid by Jeffus and Woods.

The contractors owned and operated their own commissary, and neither the lumber company, nor the mill company exercised, or could exercise, under their contract with Jeffus and Woods, any control over them or over the men employed by them. They had no supervision whatever over the cutting and delivery of the timber on the tramway further than to fix the specifications and dimension of the saw logs, to scale and pay for the timber and to require that Jeffus and Wood comply with their contract.

In Corpus Juris, vol. 39, p. 1319, referring to the right of supervision, it is said that the fact that the right of supervision is reserved to the owner for the purpose of seeing that the specific work is done in compliance with the contract will not prevent the employee from being an independent contractor, and, as a consequence thereof, such reservation by the owner will not relieve the employee from being solely liable for his own negligence.

"It is only when the employer goes beyond the...