Boyd v. Crosby Lumber & Mfg. Co.

• Citation: 166 So.2d 106,250 Miss. 433
• Decision Date: 01 July 1964
• Docket Number: No. 43053,43053
• Court: United States State Supreme Court of Mississippi
• Parties: Louis Fred BOYD v. CROSBY LUMBER & MANUFACTURING COMPANY.

Page 106

166 So.2d 106

250 Miss. 433

Louis Fred BOYD v. CROSBY LUMBER & MANUFACTURING COMPANY.

No. 43053.

Supreme Court of Mississippi.

July 1, 1964.

Robert L. Netterville, Alonzo H. Sturgeon, Natchez, for appellant.

Watson & Wilkerson, Woodville, Cox, Dunn & Clark, Jackson, for appellee.

ETHRIDGE, Justice.

The question in this case is whether there was substantial evidence and reasonable inferences therefrom to support the decision of the Workmen's Compensation Commission that J. E. Durham, and thus Louis Fred Boyd, the appellant, was an employee of Crosby Lumber & Manufacturing Company (called Crosby), and not an independent contractor. We think there was. Reversing its attorney referee, the commission held Boyd was working under Durham for Crosby, and was therefore an employee of Crosby. It remanded the claim to its attorney referee to determine the amount of compensation due claimant for his work-connected injury. The Circuit Court of Wilkinson County reversed the commission and dismissed the claim.

I.

We state the facts and inferences from the evidence which the commission found and was justified in finding: Boyd was forty-four years of age, married with five children. He had no education, but was a capable driver of a caterpillar tractor. Crosby owns and operates a large sawmill, and has a considerable acreage of timber land. Its crews cut the timber, but Crosby entered into short-term written contracts (for one, two, or three months) with others to load and haul its logs from the woods to the mill. Durham, the alleged independent contractor, had been engaged in this type of work for Crosby for five or six years. The haulers carried the logs cut from a designated tract of timber. When the contract expired, another was entered into. Sometimes a second contract was entered into covering the same tract of timber as covered the one which had expired. This was the case in one of the instant contracts between Crosby and Durham.

The printed form of contract in question signed by Durham was in formal terms, and stated that in consideration of $1 and other considerations Durham agreed to load, haul and deliver logs of Crosby from the timber that Crosby owned, 'within two months from the date hereof from the lands described.' The logs were to be delivered to the log ramp at Crosby, Mississippi by Durham, for which Crosby agreed to pay him $17 per 1000 feet. Payments for such work were to be made twice each month. It was agreed that Crosby 'is to have no control whatever over the matter, method or means of loading, hauling, delivering or handling the said logs,' and that Crosby 'is to hold second party (Durham) responsible only as to the result of his work as agreed to herein and not as to the means by which it is accomplished.' The contract was executed by Crosby and Durham, with two witnesses.

The prices in various contracts took into consideration certain variables such as distance and terrain. Often contracts were entered into before the timber was cut. Durham had been engaged in this type of work for Crosby for five or six years, doing either all or practically all of his work for it. Another alleged independent contractor, Hightower, said he had been doing this kind of work for ten years, hauling exclusively for Crosby that entire period of time. Durham's brother did similar work for Crosby, and he 'indicated that he could breach or cease work under one of defendant's contracts any time he so desired without obligation.'

Durham was paid by Crosby by check on the first and fifteenth of each month. Hauling of the logs and related work performed by Durham was 'an integral part of the defendant's business and absolutely necessary to the business as defendant depended on' him and other haulers. Crosby on various occasions caused these haulers to cease their operations when weather conditions were bad, and when the mill yard was crowded with logs. The time in which Durham and his crew could haul the logs and unload them at the mill was limited by Crosby to a period between 7:00 a. m. and 4:00 p. m. daily. Durham and other haulers were directed where and how to spot trucks for unloading, and occasionally were caused delay in their operations by having to wait in line at the mill for that purpose. Further delay sometimes was caused by Crosby when Durham and his crew were waiting for logs to be cut. Crosby's land and timbermen 'frequently inspected the premises and told claimant to stay off the little timber and not to mash it down, and sent him back to pick up single logs left behind.' Boyd knew his job well and needed no direct supervision. Crosby sold supplies to Durham and other similar contractors on credit, and then held it out of their pay. For the purpose of operating the mill and expediting the hauling contracts, Crosby had a repair shop where these contractors had their equipment repaired. The costs of such repairs were withheld from their pay. All of the hauling for Crosby was carried out under contracts similar to those with Durham, except that done by a crew of three men who were employed directly by the company for limited purposes.

Durham hired Boyd and two other persons, fixed their rate of pay, hours of employment, and paid them by his personal checks. He directed these men in the hauling operations. Crosby did not select Boyd or the other men working under Durham, and made no deductions from their pay for social security or income withholding taxes. On March 9, 1961, while working in the woods under Durham, Boyd received injuries for which this claim was filed.

II.

An analysis of the pertinent rules and cases is necessary to show the reasons for affirmance of this award of compensation benefits. In general, it is said that the right to control, not actual control of, the details of the work is the primary test of whether a person is an independent contractor or an employee. Relevant characteristics or tests are usually listed, with all except the control test being considered merely indicia pointing one way or the other. See A.L.I., Rest. Agency 2d (1958), Sec. 220, p. 485; Kisner v. Jackson, 159 Miss. 424, 132 So. 90 (1931); Carr v. Crabtree, 212 Miss. 656, 55 So.2d 408 (1951); Shumpert Truck Lines v. Horne, 227 Miss. 648, 86 So.2d 499 (1956). No general rule can be stated as to the weight of these elements, over fifteen in number. Their significance varies according to the facts of each particular case. The weight to be given each of the factors pertaining to the employee-contractor question is ordinarily to be decided by the trier of facts. It is the ultimate right of control, not the overt exercise of that right, which is decisive. Probably the four principal factors under the control test, are '(1) direct evidence of right or exercise of control; (2) method of payment; (3) the furnishing of equipment; and (4) the right to fire.' 1 Larson, Workmen's Compensation Law, Sec. 44.

There have been a number of cases from this jurisdiction involving the employee-contractor distinction with reference to loggers and lumber haulers. In some of them the court found that the facts reflected an independent contractor relationship. Carr v. Crabtree, supra; Simmons v. Cathey-Williford & Jones Company, 220 Miss. 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, 101 So.2d 100 (1958); Employers Liability Ins. Co. of Wisconsin v. Haltom, 235 Miss. 74, 108 So.2d 29 (1959).

In other logging cases it has applied the control test, and held that the party was an employee. Sones v. Southern Lumber Co., 215 Miss. 148, 60 So.2d 582 (1952); Marter v. Cathey-Williford-Jones Lumber Co., 225 Miss. 118, 82 So.2d 724 (1955); Employers Ins. Co. of Alabama v. Dean, 227 Miss. 501, 86 So.2d 307 (1956). In Sones the key test was whether the person 'is in fact independent, free of the will of his employer--actually and substantially free from his control.' It was noted that the control test stemmed largely from the common law rule in negligence cases, dealing with vicarious liability; and 'the rule is even more liberal in compensation cases.' The servant concept at common law performed the function of delimiting the scope of a master's vicarious tort liability. In contrast, compensation law 'is concerned not with injuries by the employee in his detailed activities, but with injuries to him as a result not only of his own activities * * * but of * * * co-employees, * * *. To this issue, the right of control of details of his work has no such direct relation as it has to the issue of vicarious tort liability.' 1 Larson, Sec. 43.42, pp. 630-631. Further, Sones gave weight to the fact that the logging job was an integral part of the overall operation.

The general rule is stated thus in 1 Larson, Sec. 45.22, p. 633:

'The hauling and loading of logs, ties, and the like have usually been classified as part of the employer's business, so as to bring within the act trucker-owners who are paid by quantity and who are free to hire their own assistants and, in some cases, to work on their own time. As shown above in connection with the question of extent of control of details, this is particularly true when the activities of the truckers must be integrated and coordinated with the employer's over-all production pattern.' Halliburton v. Texas Indemnity Ins. Co., 147 Tex. 133, 213 S.W.2d 677 (1948); Bowser v. State I.A.C., 182 Or. 42, 185 P.2d 891 (1947); Burruss v. B.M.C. Logging Co., 38 N.M. 254, 31 P.2d 263 (1934); Burchett v. Department of Labor and Ind., 146 Wash. 85, 261 P. 802, 263 P. 746 (1927); Hebert v. Gates, 50 So.2d 859 (La.App.1951); State Hwy. Comm. v. Brewer, 196 Okl. 437, 165 P.2d 612 (1946); Blaine v. Ross Lbr. Co., 224 Or. 227, 355 P.2d 461 (1960).

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