Davis-Day Timber Co., Inc. v. Gentry

• Citation: 309 So.2d 97,54 Ala.App. 385
• Decision Date: 26 February 1975
• Docket Number: DAVIS-DAY
• Parties: TIMBER COMPANY, INC. v. Lavon McCullough GENTRY. Civ. 446.
• Court: Alabama Court of Civil Appeals

Page 97

309 So.2d 97

54 Ala.App. 385

DAVIS-DAY TIMBER COMPANY, INC. v. Lavon McCullough GENTRY.

Civ. 446.

Court of Civil Appeals of Alabama.

Feb. 26, 1975.

Keener & Keener, Centre and Lusk, Swann, Burns & Stivender, Gadsden, for appellant-petitioner.

Traylor & Baker, Fort Payne, for appellee.

THAGARD, Supernumerary Circuit Judge.

From a judgment in a workmen's compensation case rendered in favor of the plaintiff against defendant, Davis-Day Timber Company, Inc., in the Circuit Court of Cherokee County, for the accidental death of her husband, Charles McCullough, defendant, Davis-Day Timber Company, Inc., brings this appeal by way of certiorari.

After a hearing without a jury, the court entered a finding of facts and conclusions of law, as required by statute to do; the pertinent parts of which are quoted, as follows:

'The court finds that the plaintiff, Lavon McCullough Gentry, was the dependent widow of Charles McCullough, deceased, who also left two dependent children. That the plaintiff, Lavon McCullough, Gentry, has remarried and that the recovery in this case will be paid to her for the benefit of the children as provided by law. On April 9, 1971, the deceased, Charles McCullough, was an employee of the defendant, Davis-Day Timber Co., Inc., a corporation. The amount of his earnings is not in dispute and it is stipulated and agreed that the amount of his earnings would be more than enough to qualify the plaintiff for the maximum death benefit in the event she should be allowed to recover.

'Prior to the death of Charles McCullough the defendant, Davis-Day Timber Co., Inc., a corporation, had entered into a written contract with Georgia Kraft Co. for the cutting of certain tracts of timber. According to that contract Davis-Day Timber Co., Inc. was responsible for employees cutting this tract of land and Davis-Day Timber Co., Inc. was obligated by the terms of the contract to provide certain insurance, with one particular provision providing that Davis-Day Timber Co., Inc. keep Workmen's Compensation Insurance on the employees cutting this tract of timber.

'In order to fulfill this contract Mr. H. M. Day contacted Mr. E. C. McCullough with reference to cutting the tract of timber and delivering the timber to Georgia Kraft. Mr. E. C. McCullough, rode out and looked at the tract of timber and traded for the cutting. The defendant, Davis-Day Timber Co., Inc., authorized Mr. E. C. McCullough to get other persons to help cut this tract of timber. There was no written argeement between the defendant, Davis-Day Timber Co., Inc., and either E. C. McCullough or Charles McCullough or any other persons concerning the cutting of this tract of timber. E. C. McCullough and the deceased, Charles McCullough, were treated exactly the same, paid the same 'per-unit' price, followed exactly the same procedures in receiving truck tickets and their pay and as far as can be determined were treated exactly identical for all purposes after the initial contact by which Mr. E. C. McCullough and Mr. Charles McCullough were employed.

'The deceased, Charles McCullough, provided his own equipment, hired his own helpers, by some manner cut, loaded and hauled the logs to Georgia Kraft where he received a receipt. This receipt was delivered to Davis-Day Timber Co., Inc. and a copy was mailed by Georgia Kraft to Davis-Day Timber Co., Inc. and through this method payment was made directly by Davis-Day Timber Co., Inc. to the deceased, Charles McCullough. The deceased, Charles McCullough, had a separate tract of land set aside and pointed out to him by Mr. H. M. Day or Mr. Byron Davis or some other employee of Davis-Day Timber Co., Inc.

'There was no daily individual supervision of the deceased about his work by Davis-Day Timber Co., Inc. Davis-Day Timber Co., Inc., either through Mr. Day, Mr. Byron Davis or some other employee, showed the deceased the area to be cut. Davis-Day Timber Co., Inc. gave certain general specifications as to the height of stump and nearness to tops of trees to be cut and had a general requirement that the area be cleaned up after the wood was cut. The defendant, Davis-Day Timber Co., Inc. provided a field representative to inspect the area and the area was also inspected by a representative of Georgia Kraft. Mr. Byron Davis of Davis-Day Timber Co., Inc. testified that he went personally to the area where the deceased was cutting timber on several occasions.

'There were no specific hours or days of work with the only requirement being that the wood he cut within one year according to the Georgia Kraft contract. The testimony is undisputed that Davis-Day Timber Co., Inc. had the right to fire the deceased if he did not cut the wood to the specifications or did not sufficiently clean the area where he had already cut. An amount of money was withheld of the deceased to insure the proper clean-up.

'The defendant, Davis-Day Timber Co., Inc. had some type accidental death insurance which covered the deceased and other persons who worked on this tract of land and the widow of the deceased, did in fact, receive some type of accidental death benefits as a result of this policy taken out by Davis-Day Timber Co., Inc.

'The defendant, Davis-Day Timber Co., Inc., took out a workmen's compensation insurance policy which, in the coverage clause covered 'logging and logging operations' if any. Although that coverage sheet does not show a specific amount of premium paid at the time of taking out the policy, the policy provides for payroll audit to correct any error in amount of premium collected.

'The court finds that the defendant, Davis-Day Timber Co., Inc., a corporation, had the right to control, supervise and hire and fire the deceased, Charles McCullough the said defendant showed the deceased where to work, had the right to and did, in fact inspect the area, set out specifications and requirements for the cutting and cleaning up and at all times retained the right to hire and fire the deceased in the event the job was not being properly done. Therefore the court finds that the deceased, Charles McCullough, was an employee of Davis-Day Timber Co., Inc., a corporation, within the meaning of the Workmen's Compensation Laws of the State of Alabama and that the plaintiff is entitled to recover the maximum death benefits against said defendant. The court further finds that the plaintiff is entitled to recover the maximum funeral benefits payable by law which was in force at the time of the death of Charles McCullough.

'The court further finds that due notice of the accident and injuries was received by the defendant, Davis-Day Timber Co., Inc.

'The court finds specifically that on April 9, 1971, while the deceased, Charles McCullough, was an employee of the defendant, Davis-Day Timber Co., Inc., a corporation, and while he was acting within the line and scope of his employment as such employee the said Charles McCullough suffered an accident in that a tree which he was trying to load on a truck with a front-end loader roller over the top of the loader striking him and causing injuries from which he died.

'Therefore the court finds that all the requirements of the Workmen's Compensation Law of Alabama are met and that plaintiff is entitled to recover workmen's compensation benefits.

'JUDGMENT

'It appearing that the defendant Davis-Day Timber Co., Inc., a corporation, is subject to the Workmen's Compensation Laws of Alabama, that Charles McCullough was an employee of said company and was at the time of his injury and death in the course of his employment and...