Carr v. Crabtree

• Decision Date: 03 December 1951
• Docket Number: No. 38102,38102
• Parties: CARR v. CRABTREE et al.
• Court: Mississippi Supreme Court

Page 408

55 So.2d 408

212 Miss. 656

CARR v. CRABTREE et al.

No. 38102.

Supreme Court of Mississippi, in Banc.

Dec. 3, 1951.

J. A. Phillips, Macon, for appellant.

Sams & Jolly, Columbus, Rae Bryant, Gulfport, for appellees.

KYLE, Justice.

This is a workmen's compensation case. The case was heard before the attorney-referee on September 11, 1950, and a decision was rendered in favor of the claimants. C. T. Crabtree, the alleged employer, and the Bituminous Casualty Company, the insurance carrier, then appealed to the whole commission. The commission on October 10, 1950, in a two-to-one decision, sustained the findings of the attorney-referee and made an award in favor of the claimants, Edna Bell Carr, the surviving widow, and Gloria Jean Cotton, minor foster child of the deceased. From the decision of the commission, sustaining the findings of the attorney-referee and making an award to the claimants, the defendants appealed to the Circuit Court of Noxubee County. The case was heard before the circuit judge in vacation on November 20, 1950, and an order was entered by the circuit judge reversing the order of the commission, and judgment was rendered for the defendants. From that order the claimants prosecute this appeal.

According to the findings of the attorney-referee, the deceased, John Henry Carr, was killed in an accident arising out of and in the course of his employment on July 17, 1950. Carr was killed by a log falling on him while he was engaged in felling and hauling timber for Crabtree. The deceased was survived by his widow, Edna Bell Carr; and the deceased and his wife, at the time of the death of the deceased, were maintaining in their home the minor child, Gloria Jean Cotton, nine years of age, who was the daughter of Edna Bell Carr's sister.

The facts in the case are in the main undisputed. C. T. Crabtree was a lumber manufacturer and owned and operated a saw mill at Macon. During the spring of 1950 Crabtree purchased a tract of timber, known as the Thompson tract, and entered into a verbal agreement with the deceased, John Henry Carr, and his brother Martin Carr, to cut the timber and haul the same to Crabtree's mill. The tract of timber which Carr Brothers agreed to cut and haul to Crabtree's mill was estimated to contain between 300,000 and 500,000 feet. The cutting and hauling were to be done for a unit price, and Carr Brothers were to receive $11.50 per thousand feet, log scale, as compensation for their services. The Carr brothers were to furnish their own truck, teams and tools which were to be used in the cutting and hauling of the timber. They hired additional workmen to assist them in cutting the timber and hauling the same to the mill. The names of these workmen did not appear on the payroll of the Crabtree Lumber Company.

C. T. Crabtree and Martin Carr, the surviving partner, both testified upon the hearing before the attorney-referee. Crabtree was called as an adverse witness by the claimants, and Martin Carr was called as a witness for the claimants.

Crabtree testified as to the terms of the agreement that had been made between him and the Carr brothers for the cutting and hauling of the timber. It was an agreement for the cutting and hauling of all the timber 12 inches or more in diameter, except the hickory timber, on the Thompson tract. The logs were to be delivered on Crabtree's mill yard, where they were to be scaled by Crabtree. The Carr brothers were to be paid $11.50 per thousand feet, log scale, for the cutting of the timber and the hauling of the logs to the mill. No time limit was fixed by the parties within which the contract was to be completed. Crabtree testified that the Carr brothers devoted their own time to the timber cutting and logging operations, and employed their own labor to assist them in the performance of the contract; that they usually worked five days each week, if the weather was good; that they regulated their own time for going to work and for quitting; that they determined for themselves the number of workmen that they would employ, and fixed the wages of their employees; that they used their own truck and their own axes and saws. Crabtree stated that he paid Carr Brothers at the end of each week at first, and later every two weeks, for the logs delivered by them at the mill; that Carr Brothers purchased their own truck parts and repair parts, and furnished their own oil, gasoline and other supplies; that he did not make advancements of money to them for the purchase of supplies, and that he did not 'stand for their notes on the truck or for any parts.' Crabtree stated that he had an old truck on the mill yard that he had purchased in 1939, and had junked because it was worn out, and that he told the Carr brothers that they could use it if they wanted to fix it up; that the Carr brothers had the truck repaired and reconditioned at their own expense, so that they could use it, and thereafter used the truck in their logging operations along with the truck which they already owned. Crabtree stated that he went into the woods once or twice a week and inspected the cutting, and that on one occasion Carr Brothers got behind with their operations and he put a truck of his own on the job to help them keep logs at the mill. In answer to a question propounded to him by the claimants' attorney as to whether he had a right to terminate the contract at any time, Crabtree said, 'No; there wasn't nothing said about it.'

Martin Carr testified that he and his brother had always worked together; that they had contracted to cut and haul several blocks of timber for Mr. Henry Sparkman prior to the time they entered into the agreement with Mr. Crabtree for the cutting and hauling of the timber on the Thompson place; that Carr Brothers had traded with Mr. Sparkman for the cutting and hauling of timber for him at different prices, and that under the last contract they had performed for him they had been paid $15 per thousand feet for the cutting and hauling of the timber; that they had also cut and hauled other tracts of timber for Mr. Crabtree; and that they had at times bought timber themselves and cut and hauled it and sold it to the Fair Lumber Company. Martin Carr testified further that when he and his brother began their timber cutting operations on the Thompson tract Mr. Crabtree pointed out to them the boundary lines of the tract which they were to cut, and told them that he had bought the hardwood timber 12 inches or more in diameter at the stump, and that Mr. Crabtree gave them instructions as to the lengths of the logs to be cut; that while they were engaged in cutting the timber Mr. Crabtree came into the woods sometimes once or twice a week, but sometimes he did not see him at all. Martin Carr stated that Mr. Crabtree never tried to tell the Carr brothers whom they should hire or whom they should fire; that after the Carr brothers had traded with Mr Crabtree to cut and haul the timber on the Thompson tract, they sublet the actual felling of the trees and the cutting of same into logs to Eugene Rogers, and agreed to pay Rogers the sum of $3.50 per thousand feet to cut the logs for them; that Rogers then hired his own labor to help him fell the timber and cut it into logs; and that Mr. Crabtree had nothing to do with their contract with Rogers. Martin Carr stated that he and his brother agreed with Mr. Crabtree to cut the block of timber for $11.50 per thousand feet and deliver it at the mill; that he still regarded the contract as a binding contract; and that he was still cutting and hauling and delivering logs at the mill under the terms of the agreement.

In his findings the attorney-referee stated that it was apparent that at the inception of the transaction Crabtree intended that the relationship of the Carr brothers to him should be that of independent contractors, but that it developed later that the Carr brothers were unable to carry on with their part of the agreement without assistance, and that Crabtree found it necessary to offer assistance, which according to his testimony he did from time to time. The attorney-referee found that the relationship of the Carr brothers was therefore not that of independent contractors, but that the Carr brothers were employees of C. T. Crabtree, and that the claimants were entitled to an award of compensation under the Workmen's Compensation Act. Laws 1948, c. 354.

In their order affirming the findings of the attorney-referee, a majority of the commissioners emphasized the fact that the financial status of the Carr brothers was a factor which should be taken into account in determining their legal status as independent contractors, and in their order the commissioners said, 'We feel that an independent contractor should be an operator of substance, with his own equipment, his own means of financing operations, and complete and final supervision over his entire operations.' The commissioners also made the following statement: 'In the case at hand the timber cutting, bunching of logs, and hauling of logs was probably one half or more of the cost of Crabtree's operation from the standpoint of labor, and was an essential step in operating the mill. To hold that a continuing operation was under two separate and independent managements, each of which by its very nature was dependent upon the other, and so closely geared that the failure of one to function would disrupt the schedule of the other, would serve to evade the compensation law, whether intentional or not, and would take protection from those employees most in need and least able to provide for themselves in the event of accidents.'

The circuit judge after reviewing the record on appeal found that the order of the commission making an award of compensation to the claimants was not supported by the evidence, that the deceased, John Henry Carr, was not an employee of the defendant-appellant, C. T. Crabtree, when he met his death, but an...