Finley v. Keisling

• Court: Tennessee Supreme Court
• Writing for the Court: McKINNEY, J.
• Citation: Finley v. Keisling, 270 S.W. 629, 151 Tenn. 464 (Tenn. 1925)
• Decision Date: 11 April 1925
• Parties: FINLEY v. KEISLING ET AL.

270 S.W. 629

151 Tenn. 464

FINLEY v. KEISLING ET AL.

Supreme Court of Tennessee.

April 11, 1925

Appeal from Circuit Court, Overton County; C. E. Snodgrass, Judge.

Suit under the Workmen's Compensation Act by Maggie D. Finley for death of her husband, R. D. Finley, opposed by A. G Keisling and others, employers. Decree for defendants, and claimant appeals. Reversed and remanded, unless parties agree on amount, in which case decree will be rendered.

McKINNEY J.

This is a suit by Mrs. Finley, under the Workmen's Compensation Act (Pub. Acts 1919, c. 123), to recover for the death of her husband, upon allegations that he died from injuries received while in the employ of the defendants, a partnership.

On April 30, 1923, the defendants purchased a boundary of timber from Hilery Carr, and erected a sawmill upon the land for the purpose of manufacturing the timber into lumber.

On January 30, 1924, the defendants entered into a written contract with C. L. Swafford to cut the timber on said land and deliver same to its mill.

Subsequently Swafford contracted with Luther Eldridge to cut the timber for $1.75 per thousand feet. Eldridge employed plaintiff's husband, R. D. Finley, to assist him in felling the timber. While so employed he was injured by being struck by a limb and died within a few hours.

The determinative question, according to the contention of counsel, is the relationship which Swafford bore to the defendants, it being conceded, in effect, that if Swafford were an independent contractor the plaintiff cannot recover, but that if he were a servant of defendants she can recover.

The contract between Swafford and the defendants is as follows:

"Livingston, Tenn., 1/30/24.

Article of agreement entered into by and between A. G. Keisling Lumber Co., party of the first part, and Charlie Swafford, party of the second part. Second party agrees to cut and deliver on a yard near a pond on the land of Hilery Carr, as designated by first party, all the timber bought of the said Carr by first party, to cut and haul said timber as directed by said first party, to put eight mules on the job, and use reasonable diligence in trying to keep sufficient logs at mill to run same. First party agrees to pay to second party for the cutting and delivering said logs at mill, the sum of $5.25 per M. Doyl-Scribner Log rule, to be paid from time to time as logs are delivered.

This contract made in duplicate, each party holding copy. A. G. Keisling Lbr. Co., by A. G. K.

C. L. Swafford."

We wish to emphasize the provision of the contract which says, "To cut and haul said timber as directed by said first party."

The defendant firm was composed of B. B. Ledbetter, A. G. Keisling, and J. H. Keisling, who were doing business under the style of A. G. Keisling Lumber Company. Ledbetter looked after the cutting and hauling of the timber.

Swafford testified as follows:

"By the Court: Who directed them where to cut and how to cut the timber?

A. Mr. B. B. Ledbetter was my overseer.

Q. Was he there on the premises from time to time?

A. Yes, sir; he was there most of the time.

Q. Did you hear him giving any directions to these men who was cutting the timber?

A. I don't remember; he was about the works, and sometimes maybe he would pass where we was logging; I don't remember whether or not I ever heard him tell them where to cut."

Witness testified on cross-examination as follows:

"Q. Mr. Ledbetter, when we wrote this contract, he wanted the right to rule the cutting?

Q. The length the timber was to be cut?

A. Yes, sir.

Q. What timber to cut and the length to cut it?

A. I imagine the way he talked, if he wanted certain timber cut, he wanted the right to have it cut.

Q. What length and what timber to cut, whether or not beech, oak, or whatever it was?

A. Yes, sir.

Q. And the lengths to cut?

A. Yes, sir.

Q. He did not exercise the right to hire or fire your men, and he did not pay your men?

A. I understand the right and so on; he wanted to boss the cutting and wanted me to boss it.

Q. He wanted to boss the lengths and the kind of timber he wanted out?

A. Yes, sir.

Q. That is what he specified?

A. He did not say for certain; he did not say anything about the kind; he said he wanted the right or the say-so about cutting the timber.

Q. He did not hire your men?

A. No, sir.

Q. He did not hire Mr. Eldridge, and he did not pay your man or Mr. Eldridge?"

Witness testified on re-examination as follows:

"Q. Did your contract provide that Mr. Ledbetter was to have control and direction of the cutting of the timber?

A. Yes, sir. I am not certain whether or not it was drawn that way in the contract.

Q. I will ask you, who directed Mr. Eldridge in the cutting and getting out of the logs ready for you to haul to the mill?

A. Mr. Ledbetter.

Q. Did you give him any direction in reference to that, or at any time attempted to do so?

A. No, sir; Mr. Ledbetter did all that. All I looked after was the logging."

Witness testified on re-cross examination as follows:

"Q. Did Mr. Ledbetter give you any directions about the cutting, etc.? A. I am not certain; he come up there and asked me about hauling certain stuff; asked me if I could get it out; I said I guessed I could cart it out.

Q. He wanted the logs cut a certain length?

A. He wanted them 26 feet.

Q. Was it a special bill of lumber he had?

A. Yes, sir."

Witness was recalled, and testified as follows:

"Q. What did you say the provisions of your contract were in reference to cutting the timber?

A. When I made the trade--I don't know whether or not there was any written contract--when I made the trade, Mr. Ledbetter wanted the right to sort of control the cutting; I will not say that is in the contract; I have forgot all about how the contract reads; I could not tell."

Luther Eldridge testified as follows:

"Q. Who looked after and managed and controlled the cutting of that timber?

A. Well, I was the one that sort of looked after it most of the time; Mr. Ledbetter would show me and change me from one place to another on the job; he would tell me what to cut and the lengths to cut, and moved me from place to place about cutting the timber.

Q. What directions did Mr. Ledbetter give you with reference to cutting the timber?

A. Nothing more than he changed me from one place to another about cutting the timber; there was a little hollow he wanted the timber cut in there first in order to get rid of it--get it cut before the sap came up; he changed me back and forwards on that. I worked to his advantage, and he tried to do the same with me."

On cross-examination witness testified as follows:

"Q. The only trade you had, Mr. C. L. Swafford was to furnish the tools to you and pay you $1.75 per thousand feet?

A. Yes, sir; he did that very thing.

Q. The only relation you had with Mr. B. B. Ledbetter was that he was to tell you he would come out and say, that this timber ought to be cut certain lengths, and this timber ought to be cut next, and certain timber at certain other places ought to be cut next?

A. Yes, sir; he would have bills for long stuff and bills for short stuff.

Q. He would tell you that they needed certain timber at the time according to some contract they had to cut the timber; was that it?

A. Yes, sir.

Q. He would tell you the length he wanted it cut?

A. Yes, sir, and he would come out to see whether or not I cut it right. I had not cut much timber for him; I had worked a little for him before that time.

Q. He told you where to cut the timber and what lengths to cut it, but he did not come and tell your men to get off the job, that he did not want them, but would simply tell you about what timber to cut and where and the lengths?

A. Yes, sir.

Q. You just cut certain lengths and at certain places he told you?

A. Yes, sir."

B. B. Ledbetter testified as follows:

"Q. Did you ever give them any instruction of any kind. If so, what were those instructions?

A. Probably; sometimes I would go out where Mr. Eldridge was cutting and tell him about certain kind of logs we would want. I give Mr. Eldridge some instructions, I think, about the lengths--something like that. One time I remember they were falling short in the lengths. I went out in the woods and told him about it. For instance, a sixteen-foot log would be less than sixteen feet; something wrong with the measurements."

Witness testified on cross-examination as follows:

"Q. Did you ever tell them to go and cut certain timber before the sap rose?

A. I would not say; I don't remember that I did."

A. G. Keisling testified as follows:

"Q. What were the provisions of that contract?

A. Well, of course, I cannot give the contract verbatim, but the contract was that Mr. Swafford was to cut and haul or log the timber to our millyard at $5.25 per thousand feet, I think it was the contract called for. And the contract provides further that the cutting of this timber and the logging, or more especially the cutting, was to be done under the directions of the A. G. Keisling Lumber Company; that is, they should cut the timber when we said, and cut it as we said, and such timber as we wanted cut; that is the provisions of the contract; I don't know the exact words, but that was the intention of the contract. In other words, we were to name the kind of timber, the certain grades or kind, and the certain lengths that we wanted cut, certain bill of stuff, long stuff or short stuff.

Q. That is the provisions of the contract?

A. Yes, sir."

On cross-examination witness testified as follows:

"Q. According to your statement of what the contract was, you had absolute control of the cutting of the timber?

A. We had control;...