Bush v. Byrd's Dependents, 40973

• Decision Date: 12 January 1959
• Docket Number: No. 40973,40973
• Court: Mississippi Supreme Court
• Parties: A. A. BUSH and United States Fidelity & Guaranty Company, v. DEPENDENTS OF James H. BYRD, Deceased.

Page 211

108 So.2d 211

234 Miss. 782

A. A. BUSH and United States Fidelity & Guaranty Company, v. DEPENDENTS OF James H. BYRD, Deceased.

No. 40973.

Supreme Court of Mississippi.

Jan. 12, 1959.

Lowell W. Tew, Welch, Gibbs & Graves, Laurel, for appellant.

Pershing B. Sullivan, Lampkin H. Butts, Laurel, for appellee.

HALL, Justice.

This proceeding was brought by the dependents of James H. Byrd, deceased, for the recovery of workmen's compensation benefits alleged to be due them as the widow and children of James H. Byrd who met his death as the result of a collision between a gravel truck owned and operated by Byrd and an automobile owned by James A. Venhaus and operated by Julius D. Smith. There is no dispute of the fact that Byrd's death arose out of and in the course of his employment with Bush if the relationship of employer and employee existed between them at the time. The attorney-referee found that it did exist and awarded compensation to the dependents; the Workmen's Compensation Commission affirmed the action of the attorney-referee and on appeal the circuit court affirmed the decision of the Commission, from which comes this appeal.

1. Only two questions are raised by appellant as grounds for reversal. The first is that Byrd was not covered by the Compensation Act for the reason that he was an independent contractor and not an employee.

The facts in this case are that Bush is rather extensively engaged as a contractor. At the time in question Bush was engaged in surfacing a large woodyard with gravel for Masonite Corporation. He owned some of the trucks used in hauling this gravel and paid the drivers thereof on an hourly basis, clearly making them employees. Byrd, however, owned his own truck and was paid on a unit basis for gravel delivered to the site. His gasoline and repairs were charged to Bush and the amount thereof was withheld by Bush from Byrd's pay check. Byrd was required by Bush to carry public liability insurance. Bush owned the gravel and Byrd's time of work commenced when a dragline operated by Bush for loading the trucks began operation. Bush controlled the construction site and the gravel was unloaded thereat under the directions of Bush's foreman at the point and in the manner directed. Byrd was required to work regularly or not at all. He could quit the job whenever he pleased and could be fired at any time that Bush desired. He was paid once a week. In fact, Bush had the right to control every detail of the work.

We think that under these facts the relationship of employer and employee existed between them, and that the case of Wade v. Traxler Gravel Co., Miss., 100 So.2d 103, 108, not yet reported in the State Reports, is identically in point. We quote briefly from pages 108 and 109 of the opinion in that case as follows: 'In the case that we have here there is no substantial dispute as to the facts relating to Wade's employment; and it seems clear to us from the testimony of Wade and Traxler that Wade was a mere employee of Traxler at the time of his injury. Traxler had and exercised the right of control over Wade's hauling operations which is normally present in the employer-employee relationship. Wade was hired to haul gravel at so much per cubic yard and according to length of the haul. He did not contract to do a set piece of work; his employment was not to last for any specified period of time. Traxler controlled the loading of Wade's truck at the pit; and through the ownership and operation of the loading machinery Traxler controlled in a measure the hours of the day during which Wade could haul gravel. Traxler determined the kind and quantity of gravel that Wade should haul, the distance which the truck was to travel, and the amount of pay that Wade was to receive for delivering gravel to the purchaser. Wade and Traxler both testified that Wade could quit work at any time that he pleased, and that Traxler might terminate his services at any time that he saw fit to do so. Wade had no distinct occupation or business. He was...