Brown v. Fox
| Decision Date | 20 June 1949 |
| Docket Number | Record No. 3533. |
| Citation | 189 Va. 509 |
| Court | Virginia Supreme Court |
| Parties | ARTHUR BROWN, JR. v. FRED R. AND ROBERT J. FOX, ET AL. |
2. Claimant was injured while engaged in unloading lumber which he had hauled for defendant in a truck defendant had delivered to claimant for purchase by him. The contract of sale was vague and made primarily to secure claimant's services when labor was scarce. The contract as to his employment was equally vague. Although defendant testified that when he agreed to sell the truck it was generally understood that claimant was to pay for it by hauling, and said he had offered a flat rate per thousand for hauling lumber, claimant had not accepted the offer and defendant admitted it was not contemplated that claimant would pay for the truck by hauling lumber. He placed himself completely under defendant's orders and there was no difference in the control exercised over him and an employee of defendant engaged on the same work. He was told to haul lumber, when and where to haul it and the route over which he should travel, and defendant's mill crew assisted in the loading. Claimant was also directed when and where to do other hauling and hauled other loads for defendant. This evidence did not sustain the finding of the Industrial Commission of Virginia that claimant was an independent contractor but showed that the relationship between defendant and claimant was one of master and servant.
Appeal from an award of the Industrial Commission of Virginia.
The opinion states the case.
Douglas S. Mitchell and John E. DeHardit, for the appellant.
Harold H. Dervishian and J. H. Rives, Jr., for the appellees.
This is an appeal from an order of the Industrial Commission of Virginia dismissing a claim of the appellant, Arthur Brown, Jr., against Fred R. Fox and Robert J. Fox, a partnership known as Fox Brothers, his employers, and the American Mutual Liability Insurance Company, insurer, appellees. The Commission found that the partnership was engaged in the operation of a store, a farm, and a sawmill.
The appellant, on the 18th day of November, 1947, while unloading lumber from a truck, sustained a fracture of his left leg, from which he developed gangrene and an amputation was performed at the mid-thigh November 29, 1947. His claim against Fox Brothers for compensation was heard before the Industrial Commission on August 23, 1948. On January 4, 1949, a decision was rendered denying the claim on the ground that the appellant was an independent contractor and not an employee of Fox Brothers when the accident occurred.
The principal facts in the case are undisputed.
At the time of the injury, the appellant, a colored boy, was engaged in unloading from a truck a load of lumber which he had hauled at the request of Fox Brothers from their lumber mill at Milwood to the Quarles Lumber Yard at Ashland, Virginia.
The circumstances under which the appellant was directed by Fox Brothers to haul the lumber may be briefly stated as follows:
Fox Brothers owned a 1941 Ford truck, which, some months before, they had stored for sale on a lot in the city of Richmond. On November 12, about a week before the accident, the appellant and Fred Fox had a conversation with reference to the sale of the truck to the appellant. The negotiations were conducted entirely with Fred Fox. Appellant's statement of what transpired, which is uncontradicted, is as follows:
As to the method of paying for the truck, Fox gave the following testimony:
Appellant then drove the truck loaded with the wheat and some groceries to Fox Brothers' store, where the groceries were apparently unloaded, and Fox sent him along with a helper to unload the wheat at the Fox farm. This occurred on Thursday, November 13.
On the following Monday, November 17, the appellant reported at Fox's store and requested information as to what work he was to do. Fox directed him to drive the truck to a place in King William County and get a harrow and take it to the Fox farm. When he returned from this trip, he again saw Fox, who told him to go to the sawmill, load up the truck with lumber and take it to Quarles' lumber yard at Ashland, which he did. He was assisted in loading the lumber by a member of the Fox mill crew. He carried only one load of lumber on this day. The next morning, which was the day of the accident, he again went to the Fox store for directions as to what work he should do. Fox directed him to go to Manquin and get a drill and take it to the same farm. Fox further directed him, after he had gotten the drill, to go to the lumber mill and haul lumber to the Quarles Lumber Yard. He was accompanied both on the trip to King William County and that to Manquin by one of Fox's employees who assisted him. When he arrived at the mill, he was likewise assisted in loading the lumber on the truck by the mill crew employed by Fox. He hauled two loads of lumber to the same lumber yard at Ashland, and it was while he was hauling the second load that he sustained the injury here involved.
The appellant testified that he had no agreement with Fox as to how much lumber he was to haul, or any agreement as to the compensation he was to receive for hauling the wheat and groceries, the harrow, the drill, or the lumber. He also stated he had no agreement as to any particular place to which any lumber was to be hauled. He further testified that he had an agreement with Fox that he was to pay for the truck by working by the day, but it was not understood at that time there was any particular type of work that he was to do.
Fox also testified that there was no understanding as to how much lumber the appellant was to haul, or how much per load, nor for how long he was to haul it; that he might haul one thousand, two thousand, or ten thousand feet. He corroborated the testimony of the appellant that he sent him for the harrow on Monday morning and for the drill on Tuesday.
The evidence shows that at this time Fox Brothers had working for them a boy by the name of Joe Taylor, whose compensation was $30 per week. His principal duty was hauling lumber for Fox Brothers on a truck owned by them, and at that time he was carrying it from the same mill to the same lumber yard at Ashland. Fox testified that he had the same supervision over appellant that he had over Joe Taylor; that if his work had not been satisfactory he felt at liberty to stop it. Fox further testified that, before he and appellant went to Richmond and got the truck, he did not know that appellant would haul any lumber for him.
The only evidence relied upon by the appellees as establishing a relationship of independent contractor is the following testimony of Fred Fox:
Fox does not fix the time this statement was made, nor does he claim that there was any response to it by appellant, or any verbal acceptance of the offer. He does not claim that appellant voluntarily went to the lumber mill to haul lumber, nor does he deny that the only times appellant went there were when he was ordered by Fox to do so and to haul the lumber. There is no testimony to indicate whether Fox's offer was understood by appellant to apply after the transfer to him of the title to the truck, or whether it might be applicable prior to that time. The testimony of appellant, as well as his actions, make it clear that he did not consider at that time that he was hauling lumber at $5.00 per thousand. Unless he did so understand there was no meeting of the minds and no agreement as to the contemplated compensation.
With reference to the purchase and sale of the truck, it is clear from the testimony of both appellant and Fox that no definite terms had been...
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