Biggart v. Texas Eastern Transmission Corp., No. 45759

• Court: United States State Supreme Court of Mississippi
• Writing for the Court: PODGERS
• Citation: 235 So.2d 443
• Parties: J. A. BIGGART et al. v. TEXAS EASTERN TRANSMISSION CORP. and Brown & Root, Inc.
• Docket Number: No. 45759
• Decision Date: 27 April 1970

Page 443

235 So.2d 443 J. A. BIGGART et al.
v.
TEXAS EASTERN TRANSMISSION CORP. and Brown & Root, Inc. No. 45759. Supreme Court of Mississippi. April 27, 1970.
Rehearing Denied June 8, 1970.

Barnett, Montgomery, McClintock & Cunningham, Jackson, for appellants.

Daniel, Coker, Horton & Bell, Jackson, for appellees.

PODGERS, Justice:

This appeal is from the Circuit Court of the First Judicial District of Hinds County, Mississippi, involving a tort suit for the death of Jatt O. Biggart. On July 22, 1967, Texas Eastern Transmission Corporation (Texas Eastern) was doing excavation work on its gas pipeline ditch in Copiah County, Mississippi, through its contractors, Brown & Root, Inc., and River Consruction Corporation. Brown & Root, Inc., was in charge of the engineering and construction as agent of Texas Eastern. River Construction Corporation was the pipeline contractor and had on its payroll the deceased. The pipeline had been laid in the ditch, but River Construction Corporation had failed to attach certain wires to the pipe, making it necessary to dig out the ditch again so these wires could be attached.

Mr. Jack Crum, employee of Texas Eastern, ordered Biggart into the ditch to shovel dirt from the pipe. The ditch was approximately seven (7) feet deep, nineteen (19) inches wide at the bottom and twenty-five

Page 444

(25) inches at the top. Dirt was piled around the top of the ditch bank. The banks of the ditch caved in, burying Biggart and causing his death a few minutes later.

River Construction Corporation paid to the heirs of Biggart workmen's compensation benefits. A stipulation entered into by the parties shows that workmen's compensation coverage at the time of the accident was also carried by Texas Eastern and Brown & Root, Inc.

Suit was brought against Texas Eastern and Brown & Root, Inc., for Jatt O. Biggart's death on the theory that, as to him, these two companies were third parties; therefore, his heirs can sue for damages for his death even though his employer (River) had already paid workmen's compensation death benefits.

There was no jury trial. The circuit judge heard the matter on an agreed stipulation for the purpose of ruling on defendants' affirmative defense to the effect that River Construction Corporation was not an independent contractor; that the two defendants, Texas Eastern and Brown & Root, Inc., had the right to exercise control over deceased and over the details of the work, and thereby, he was their employee, since all three corporations carried workmen's compensation; that plaintiffs below would not have a right to sue these two defendants; that the sole remedy for Jatt O. Biggart's death is a workmen's compensation claim.

The lower court upheld defendants' affirmative plea and dismissed the case.

The only facts presented to the lower court, and the only facts properly before this Court, are those stipulated to by the parties, and they are set out in an appendix attached hereto.

Although there are many questions raised by appellants, the real issue in this case is whether or not Texas Eastern Transmission Corporation and Brown & Root, Inc., had authority to direct the activity of Jatt O. Biggart at the time Jack Crum ordered Mr. Biggart into the ditch. The answer to this question depends upon whether or not River Construction Corporation was an independent contractor.

The stipulated facts in this case show that the deceased, Jatt O. Biggart, was employed by River Construction Corporation and that River Construction Corporation (hereafter called River) was subject to the control of appellees, both as to the ultimate result and the detail work on the job. The stipulated facts show that River was not independent since Brown & Root, Inc., and Texas Eastern supervised, governed and controlled River's plan of work, course of work and details of work; therefore, River was the employee of appellees and River's employees were employees of appellees. Brown v. E. L. Bruce Co., Inc., et al., 253 Miss. 1, 175 So.2d 151 (1965). Cf. Renfroe v. Higgins Rack Coating & Manufacturing Co., 17 Mich.App. 259, 169 N.W.2d 326 (1969).

Although Jatt O. Biggart, deceased, was employed and paid by River, the engineer for Brown & Root, Inc., and the foreman for Texas Eastern were entitled to, and did exercise control over the employees of River.

The traditional test of the employer-employee relationship is the right of the employer to control the details of the work. Jatt O. Biggart was an employee of River and subject to the control of Texas Eastern and Brown & Root, Inc., appellees, at the time of his death. Brown v. E. L. Bruce Co., Inc., et al, 253 Miss. 1, 175 So.2d 151 (1965); Louis L. Gily & Sons v. Dependents of Shankle, 246 Miss. 384, 149 So.2d 480 (1963); Wade v. Traxler Gravel Co., 232 Miss. 592, 100 So.2d 103 (1958); Mozingo v. Mississippi Employment Security Commission, 224 Miss. 375, 80 So.2d 75 (1955).

Page 445

An employee may be employed by more than one employer while doing the same work. The fact that only one of the employers paid Biggart (here River Construction Corporation paid deceased) does not alter the fact that Biggart was in the service of Texas Eastern and Brown & Root, Inc., an employer-employee relationship between appellees and deceased Biggart based on the element of control present at the time. Boyd v. Crosby Lumber & Manufacturing Co., 250 Miss. 433, 166 So.2d 106 (1964); Meridian Taxicab Co., Inc. v. Ward, 184 Miss. 499, 186 So. 636 (1939); Texas Co. v. Mills, 171 Miss. 231, 156 So. 866 (1934); Cf. C. H. Leavell and Company and Peter Kiewit Sons' Company v. J. V. Doster, d/b/a Central Gulf Construction Co., 233 So.2d 775 (Miss., March 23, 1970).

Since Jatt O. Biggart, deceased, was an employee of Texas Eastern and Brown & Root, Inc., the exclusive remedy for his heirs and dependents is under the Mississippi Workmen's Compensation Act.

Section 6998-05, Mississippi Code 1942 Annotated (1952), provides as follows:

' § 6998-05. Exclusiveness of liability.-The liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next-of-kin, and anyone otherwise entitled to recover damages at common law or otherwise from such employer on account of such injury or death, except that if an employer fails to secure payment of compensation as required by this act, an injured employee, or his legal representative in case death results from the injury, may elect to claim compensation under this act, or to maintain an action at law for damages on account of such injury or death. In such action the defendant may not plead as a defense that the injury was caused by the negligence of a fellow servant, nor that the employee assumed the risk of his employment, nor that the injury was due to the contributory negligence of the employee.'

In addition to the authorities cited above, the instant case is controlled by Stubbs v. Green Brothers Gravel Co., Inc., 206 So.2d 323 (Miss.1968), and Robertson v. Stroup, 254 Miss. 118, 180 So.2d 617 (1965).

The facts in Robertson v. Stroup, supra, closely parallel the facts in the case at bar. In the Robertson case, one Stroup had obtained a license from Hertz Company to operate a rental car business in several Mississippi cities. Stroup then employed one James to operate the rental car business in one city, and compensated James by paying him ten percent (10%) of the gross receipts. At the time of his employment by Stroup, James also was the operator of a service station. In the operation of this service station, James used four employees, including one Robertson. Further facts found at page 618 of this case are as follows:

'* * * These employees performed services at the filling station and also performed services in the rental car business. They were hired by James and paid by him. Under the arrangement with Stroup, James kept the records for the rental car business and rented cars at his filling station. He also maintained an office at the Columbus airport, where cars were kept and rented. James maintained a telephone at the filling station for the rental car business with a direct...