Brown v. L. A. Penn & Son, No. 45422

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtETHRIDGE
Citation227 So.2d 470
PartiesNapoleon BROWN v. L. A. PENN & SON et al.
Docket NumberNo. 45422
Decision Date06 October 1969

Page 470

227 So.2d 470
Napoleon BROWN
v.
L. A. PENN & SON et al.
No. 45422.
Supreme Court of Mississippi.
Oct. 6, 1969.
Rehearing Denied Nov. 10, 1969.

Page 471

James A. White, Durant, Bernard W. N. Chill, Jackson, for appellants.

Butler, Snow, O'Mara, Stevens & Cannada, Dan McCullen, Jackson, for appellees.

ETHRIDGE, Chief Justice:

This is a workmen's compensation case, involving the employee-independent contractor distinction. The question is whether appellant, Napoleon Brown, was an employee of appellee, L. A. Penn & Son, or an independent contractor. The attorney referee held that Brown was not an employee. His order was upheld by the Workmen's Compensation Commission, and the Circuit Court of Madison County affirmed.

L. A. Penn & Son (called Penn) is a partnership which engages in farming, sawmilling, and dealing in pulpwood. Penn has four salaried employees. In connection with its other business operations, Penn operates a store and service station, sells power saws, and sells parts and makes repairs to power saws and other equipment. Penn purchases pulpwood for sale to International Paper Company in Canton, and also acquires pulpwood for several other consumers; but approximately seventy-five percent of its acquisitions are for International Paper. Penn obtains pulpwood for its various customers in several ways: By purchasing from other dealers under written bulk sales contracts, a method used principally in acquisitions from land owned by International Paper Company; by buying wood from individual landowners, this method amounting to twenty-five to thirty percent of its volume; and by getting it from individual cutters and haulers, who cut wood from tracts arranged for by the hauler.

Brown, an illiterate Negro 32 years of age, was injured on November 7, 1966. He had worked for Penn as an employee several years before that date, but had departed to work in the Delta hauling wood. A year later he returned to Madison County and asked Mr. Penn whether he would purchase Brown's wood at the Canton yard, to which Penn agreed. Brown had an old truck, for which he owed another man. Penn paid Brown's creditor, whereupon Brown returned to Madison County and began cutting and hauling wood and delivering it to International Paper Company for Penn's account. That truck was wrecked, and apparently insurance paid off Brown's debt to Penn. Penn then helped Brown buy another used truck and guaranteed the payments, which Penn deducted from Brown's pay and sent to the finance company.

Fifteen to twenty haulers cut and hauled wood for Penn's account. Penn paid for some small repairs to his haulers' trucks, and when parts were needed, Penn bought them at a discount from a dealer and sold them to his workers with a limited mark-up of ten percent, allowing them to benefit from the discount. Penn would occasionally arrange financing and guarantee payments for major repairs, and sometimes the bills were sent directly to Penn. Brown and other haulers purchased some of their power saws from Penn, and had use of its repair shop. Penn also operated a grocery store used by the haulers and others and deducted the amount of their purchases from their weekly pay for hauling. Brown, at various times, would buy gasoline, groceries, clothing, and other items from Penn; and on one occasion he purchased a power saw. Brown also had minor repairs made on his truck at Penn's repair shop. When major repairs were needed, Brown would take it to a Chevrolet dealership in Canton, which would bill him for the work; and Brown would make payments through Penn's office.

Almost every week in the year preceding the accident, Penn paid or settled with

Page 472

Brown on Fridays for the wood cut and hauled by him for the account of Penn for the preceding week. He was paid on a unit or cord basis. Penn also deducted from these payments a portion or all of Brown's gasoline, grocery, and clothing bills, and a portion of the payment owed by Brown to the finance company on his truck or truck repair bill.

The process of settlement following Brown's delivery of a load of logs involved International Paper Company giving him a ticket indicating the amount of the haul and the amount he was to be paid for it. Brown usually waited until Friday or Saturday to cash in all his tickets, but he was not obligated to do so. Generally Brown and the other haulers could make deliveries at any time, but occasionally they had to meet a deadline.

Penn testified that on occasions a landowner would be unhappy with the cutting method used by Brown and others and with the condition in which the premises were left. When this occurred, Penn would often require the hauler to clean up the land. Penn's annual volume of business was about $750,000. He bought wood from fifteen to twenty different haulers. Penn helped finance the trucks and repairs to them, and on many occasions the purchase of saws from him. He financed the purchase of groceries from the company store, and usually deducted this from the amount owed the haulers. Each day the haulers would be advised, either orally or by a notice on a bulletin board, of the type of wood which Penn was buying for its own account to sell to International Paper. Although Penn sold wood to other dealers, seventy-five percent of its sales were to...

To continue reading

Request your trial
8 practice notes
  • Butler v. Bunge Corporation, No. DC 6948-K.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • June 22, 1971
    ...to which he might have been directly supervised in the daily operations of the Coahoma Grain Elevator. In Brown v. L. A. Penn & Son, 227 So. 2d 470 (Miss.1969), a workmen's compensation claim arose against Penn,19 who was a dealer in pulpwood. Penn contracted with Brown for the latter to cu......
  • Pitts v. Shell Oil Company, No. 71-2652.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 26, 1972
    ...work. Biggart v. Texas Eastern Transmission 463 F.2d 334 Corp., Miss. 1970, 235 So.2d 443; Brown v. L. A. Penn & Son, Miss.1969, 227 So.2d 470; White Top and Safeway Cab Co. v. Wright, 1965, 251 Miss. 830, 171 So.2d 510; Boyd v. Crosby Lumber & Mfg. Co., 1964, 250 Miss. 433, 166 So.2d 106. ......
  • Michaud v. Charles R. Steeves & Sons, Inc.
    • United States
    • Supreme Judicial Court of Maine (US)
    • January 19, 1972
    ...entire pattern of the injured party's present and past employment relations with the other party. Brown v. L. A. Penn & Son, 1969, Miss., 227 So.2d 470. The Commission has the duty under the Act to look at all the facts and circumstances. Casebeer v. Casebeer, 1967, 199 Kan. 806, 433 P.2d 3......
  • Burlington Insurance Co. v. Malcolm, Civil Action No. 3:00CV90-D-A (N.D. Miss. 1/31/2002), Civil Action No. 3:00CV90-D-A.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • January 31, 2002
    ...pay and his failure to prepare a W-2, does not prohibit this court from finding that Bell was an employee. See Brown v. L.A. Penn & Sons, 227 So.2d 470, 472 (Miss. 1969). The court also notes that Brock failed to file a Form 1099, which would be required for an independent contractor. As su......
  • Request a trial to view additional results
8 cases
  • Butler v. Bunge Corporation, No. DC 6948-K.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • June 22, 1971
    ...to which he might have been directly supervised in the daily operations of the Coahoma Grain Elevator. In Brown v. L. A. Penn & Son, 227 So. 2d 470 (Miss.1969), a workmen's compensation claim arose against Penn,19 who was a dealer in pulpwood. Penn contracted with Brown for the latter to cu......
  • Pitts v. Shell Oil Company, No. 71-2652.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 26, 1972
    ...work. Biggart v. Texas Eastern Transmission 463 F.2d 334 Corp., Miss. 1970, 235 So.2d 443; Brown v. L. A. Penn & Son, Miss.1969, 227 So.2d 470; White Top and Safeway Cab Co. v. Wright, 1965, 251 Miss. 830, 171 So.2d 510; Boyd v. Crosby Lumber & Mfg. Co., 1964, 250 Miss. 433, 166 So.2d 106. ......
  • Michaud v. Charles R. Steeves & Sons, Inc.
    • United States
    • Supreme Judicial Court of Maine (US)
    • January 19, 1972
    ...entire pattern of the injured party's present and past employment relations with the other party. Brown v. L. A. Penn & Son, 1969, Miss., 227 So.2d 470. The Commission has the duty under the Act to look at all the facts and circumstances. Casebeer v. Casebeer, 1967, 199 Kan. 806, 433 P.2d 3......
  • Burlington Insurance Co. v. Malcolm, Civil Action No. 3:00CV90-D-A (N.D. Miss. 1/31/2002), Civil Action No. 3:00CV90-D-A.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Mississippi
    • January 31, 2002
    ...pay and his failure to prepare a W-2, does not prohibit this court from finding that Bell was an employee. See Brown v. L.A. Penn & Sons, 227 So.2d 470, 472 (Miss. 1969). The court also notes that Brock failed to file a Form 1099, which would be required for an independent contractor. As su......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT