Frost v. Blue Ridge Timber Corp.

• Decision Date: 08 December 1928
• Citation: 11 S.W.2d 860,158 Tenn. 18
• Parties: FROST v. BLUE RIDGE TIMBER CORPORATION et al.
• Court: Tennessee Supreme Court

11 S.W.2d 860

158 Tenn. 18

FROST v. BLUE RIDGE TIMBER CORPORATION et al.

Supreme Court of Tennessee.

December 8, 1928

Appeal in Error from Chancery Court, Knox County; Robt. M. Jones Chancellor.

Proceeding by Tempey J. Frost for compensation under the Workmen's Compensation Law for the death of John N. Frost, employee opposed by the Blue Ridge Timber Corporation, employer, and its insurer. From a decree sustaining the claim, the employer and insurer appeal in error. Affirmed.

Jennings Saxton & Wright, of Knoxville, for complainants.

Hodges & Creekmore, of Knoxville, for defendant.

SWIGGART J.

The Blue Ridge Timber Corporation and its insurer, American Mutual Liability Insurance Company, have prosecuted their appeal in the nature of a writ of error from a decree of the chancery court of Knox county, sustaining the claim of Mrs. Frost, as the widow of John N. Frost, for compensation for the death of her husband, under the Workmen's Compensation Law. Acts 1919, chapter 123.

The defenses interposed to the claim for compensation are: First, that John N. Frost was not an employee of the Blue Ridge Timber Corporation at the time of his death, but sustained the relation to the corporation of an independent contractor, so as not to be within the protection of the compensation statute; and, second, that the death of John N. Frost was the result of an injury due to his willful misconduct and intoxication.

There is no material controversy in the evidence as to the facts. The Blue Ridge Timber Corporation was engaged in a general logging and lumber business, and had a number of men at work hauling lumber from a mill to a shipping point, a distance of four miles. Frost, as well as a number of other men, was engaged to do this hauling, and was paid according to the number of feet of lumber he hauled. The work was under the general charge and supervision of J. A. Tindell, who was the superintendent and foreman of the corporation, assisted by an inspector, whose only duty seems to have been to measure and report the quantity of lumber hauled by each man. Frost furnished his own team, and Tindell testified that he did not exercise any control over Frost as to the number of loads he carried, nor the quantity of lumber on each load, nor as to the number of days he worked. Tindell's only description of the contract with Frost was: "His contract was to haul lumber at so much per thousand feet." Frost was required to load and unload the lumber he hauled, without assistance from the corporation.

It was further proven that the corporation paid more for hauling certain kinds of lumber than for other kinds, and Tindell, as superintendent of the corporation, designated which lumber should be hauled. He further urged the men from time to time "to make all the trips they could, and would push them to get out the lumber," and told them on one occasion that, if they "could not get the lumber out with them teams, that he would put some teams there that could."

The superintendent did not testify that the corporation did not have the right to direct and control in detail the hauling of the lumber from the mill to the shipping point. He testified only that the corporation did not, in fact, exercise such control. He did not testify that the contract with Frost was for the hauling of any stated amount of lumber, or for any definite period of time. He testified only that Frost was employed "to haul lumber at so much per thousand feet." There is nothing in this description of the contract to negative the reservation by the corporation of the right to terminate the employment at any time, with or without cause, or to control and direct the means and method of the hauling at any time it saw fit to do so, so long as the employment should last. The statement of the superintendent, in urging that the work be hurried, that he would put other teams to work in the stead of those already employed, indicates this conception of the contract by the superintendent, and there is nothing on the record to suggest the contrary.

It appears to the court, therefore, that the contract of employment was one by which the employer simply agreed to pay Frost for hauling the lumber according to the amount hauled, with no relinquishment by the employer of the right to control the means and method by which the hauling was to be done. While working under such a contract, Frost was an employee, and not an independent contractor, in so far as the application of the Compensation Law to the contract of employment is concerned. Siskin v. Johnson, 151 Tenn. 93, 268 S.W. 630; Finley v. Keisling, 151 Tenn. 464, 270 S.W. 629; Odom v. Sanford & Treadway, 156 Tenn. 202, 299 S.W. 1045.

In Finley v. Keisling, supra, this court said:

"The authorities generally hold that the mere fact that the laborer is receiving so much by the piece or job does not control the question as to whether the contractee was an independent contractor or a servant.

A number of cases could be cited to the effect that where one employs another to cut and haul timber at so much per thousand feet, the contractee is an independent contractor. But in these cases it is usually said, in effect, that the contract was one under which no power of direction or supervision was reserved by the employer." And in the same case the court further said:

"Where the power to direct and supervise

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