Employers Ins. Co. of Ala. v. Dean

• Decision Date: 02 April 1956
• Docket Number: No. 40055,40055
• Citation: 227 Miss. 501,86 So.2d 307
• Parties: EMPLOYERS INSURANCE COMPANY OF ALABAMA and Fruitdale Lumber Company v. J. H. DEAN.
• Court: Mississippi Supreme Court

Page 307

86 So.2d 307

227 Miss. 501

EMPLOYERS INSURANCE COMPANY OF ALABAMA and Fruitdale Lumber Company v. J. H. DEAN.

No. 40055.

Supreme Court of Mississippi.

April 2, 1956.

Welch, Gibbes & Graves, Laurel, Hamilton, Denniston, Butler & Riddick, Mobile, Ala., for appellants.

O. F. & J. O. Moss, Lucedale, for appellee.

ROBERDS, Presiding Justice.

On February 23, 1954, Dean, the appellee, was severely injured while unloading lumber from a truck upon the lumber yards of Fruitdale Lumber Company at Prichard, Alabama. He filed a claim against Fruitdale and its insurance carrier for compensation for his injuries under the Mississippi Workmen's Compensation Law. Chapter 354, General Laws of Miss.1948, as amended by Chapter 412, General Laws of Miss.1950, Code 1942, Sec. 6998-01 et seq.

Fruitdale and its carrier denied liability. They said that Dean, at the time of his injury, was not an employee of Fruitdale; that he was a servant of H. H. Connell, who, in his relation to Fruitdale, was an independent contractor. The attorney-referee, the full commission, and the circuit court found that Connell was not an independent contractor, but that, on the other hand, Dean was an employee of Fruitdale within the meaning of the Workmen's Compensation Act, and that, therefore, Dean was entitled to compensation from Fruitdale. From the judgment of the circuit court, this appeal was taken by Fruitdale and its carrier.

Counsel say in their briefs that the only question now presented to us on this appeal is whether or not the findings of the lower tribunals should, or should not, be sustained. That depends upon whether the lower tribunals had substantial evidence to support their findings and conclusions, or, stating the test differently, whether or not such findings and conclusions are against the great weight of the evidence. Sones v. Southern Lumber Co., 215 Miss. 148, 60 So.2d 582.

In Kisner v. Jackson, 159 Miss. 424, 132 So. 90, 91, this Court specified certain factors to be considered in determining this question: 'There are several tests to be applied, the weight of each, and whether much or little, rising and falling in the scale as it may or may not be counterbalanced by one or more of the remaining tests, present in the particular case in hand. For this reason these tests cannot be stated in any precise order of importance, but they are as follows: Whether the principal master has the power to terminate the contract at will; whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; whether he furnishes the means and appliances for the work; whether he has control of the premises; whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; whether he has the right to prescribe and furnish the details of the kind and character of work to be done; whether he has the right to supervise and inspect the work during the course of the employment; whether he has the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the subemployees and to fix their compensation; and whether he is obliged to pay the wages of said employees. These are the tests, as we think, and any other, if differently stated, may be brought within one of those above briefly set out.' See Sones v. Southern Lumber Co., supra. In the recent case of Mississippi Employment Security Commission v. Plumbing Wholesale Co., 219 Miss. 724, 69 So.2d 814, this Court further enumerated the following elements to be considered in determining the question under consideration:

(a) The extent of the control which the master has a right to exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the skill required in the particular occupation; (d) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the person is employed; (f) the method of payment; and (g) whether or not the work is a part of the regular business of the employer. Factors, other than those above detailed, may be involved under the intricate, complex commercial relations existing today. Perhaps the most important single fact in determining the relations is the right, or power, of control one has or exercises over the supposed servant or employee.

Fruitdale says it had an oral agreement with H. H. Connell under which Connell was to haul from the George County mill to the principal mill at Prichard the lumber which was manufactured at the George County mill, for which service Connell was to be paid by Fruitdale six dollars per thousand feet, Connell to furnish his own vehicles, equipment, and labor for doing the work, with the exclusive right and power to hire, control and discharge such labor, and that Connell orally contracted with Dean, the appellee-claimant, to thus haul the said lumber, and that Connell furnished to Dean a truck for such transportation of the lumber, and had exclusive control over Dean while Dean was doing the work, and that Dean was such employee of Connell at the time of his injury. On the other hand, Dean says he was, in ultimate effect, an employee of Fruitdale within the purport of the Workmen's Compensation Act.

With the foregoing legal rules and tests and contentions in mind, we will undertake to briefly state, in substance, the pertinent testimony which was before the lower tribunals as we glean it from the record before us.

H. H. Connell testified that he was forty-seven years of age and lived in Mobile; that he made the oral agreement with Fruitdale to transport lumber from George County mill to Prichard, and Fruitdale was to pay him six dollars per thousand feet for the lumber so transported, he furnishing all the means and paying all expenses of transportation; that the agreement covered no specific time; that he orally agreed with Dean to transport the lumber at five dollars per thousand feet, he furnishing to Dean a truck for that purpose; that when he engaged Dean to do this work Dean was working for Fruitdale; and that at first Dean alone unloaded his truck at destination but later he furnished Dean a helper in the unloading on the yards at Prichard. This helper used a machine called a logger's dream, which was the property of Fruitdale, and that he, Connell, paid this helper fifty cents a load but paid nothing for the use of the logger's dream. Connell said Dean selected his own route of travel in transporting the lumber, and that Dean had instructions to call him or Mrs. Connell in case of truck trouble, but if he couldn't get one of them, then to call Fruitdale. He kept social security records as an employer of Dean and furnished to Dean a form for making income tax reports, but apparently no income tax report was made by Dean, his income not being sufficient to require such report. At one time he, Connell, purchased a sick and accident insurance policy for Dean payable to Mrs. Dean, but that had lapsed. On direct examination, he said that neither Lindsey nor Campbell (composing the partnership of Fruitdale Lumber Company) had any power to direct the work of Dean or discharge him; and that he only had that right and power.

However, on cross-examination he admitted that the payrolls for the three mill plants were prepared at Prichard, which was the largest plant and covered some seven acres of ground; and that the payrolls for the George County mill were transported to that mill each Friday by Dean. He also admitted that at various times Dean had transported from Mobile and from the Prichard plant to the George County mill various and sundry articles for maintenance, repairs and use at the George County mill. This included a diesel engine which was installed and used at the George County mill. All of this was done without extra charge and at the request of one of the partners in Fruitdale. With reference to the control that Fruitdale had over him, he said: '* * * they had control of me to a certain extent. Just a verbal agreement was all. Q. They told you what to do on everything you done for them. Isn't that correct? A. That's right.' He said Lindsey and Campbell left to him the matter of hiring and firing Dean. He admitted that, at the request of Fruitdale, Dean had transported lumber from the George County mill to places other than Prichard--for instance, to Moss Point, Gulfport, Pensacola, the wharves of Mobile and other points. He said he had been employed by Fruitdale since 1947 in various types of work, from log scaler to superintendent; that when the injury to Dean occurred and when the trial took place he was employed by Fruitdale as superintendent of the Cottage Hill mill; and that during the time Dean was supposed to be working for him, that he, Dean, at the request of Lindsey, had hauled as much as ten truck loads of lumber from the Cottage Hill plant to Pensacola and other places.

J. H. Dean testified that he lived in George County. He was thirty-six years of age. Before his arrangement with Connell, he had been in the employ of Fruitdale for some four or five years. He said at first he was 'Just a flunky boy'; later he performed various duties, including the driving of a truck. As a mill worker he was paid $30 per month, and as a truck driver, he was paid $73 per week by Fruitdale. He had been driving a truck for Fruitdale for three and a half years. He had hauled lumber from the George County mill to the Prichard plant. Lindsey ran the outside operations; Campbell kept the books and records and was in charge of the inside work. He made an arrangement with Connell to haul lumber from the George County mill to the Prichard mill. It was an oral agreement. Connell paid him. He said that while he had his arrangement with Connell,...