Garner v. Southern Pulpwood Ins. Co.

• Decision Date: 28 January 1963
• Docket Number: No. 736,736
• Citation: 149 So.2d 157
• Court: Court of Appeal of Louisiana — District of US
• Parties: Willie GARNER, Plaintiff-Appellant, v. SOUTHERN PULPWOOD INSURANCE CO., Defendant-Appellee.

Page 157

149 So.2d 157

Willie GARNER, Plaintiff-Appellant, v. SOUTHERN PULPWOOD INSURANCE CO., Defendant-Appellee.

No. 736.

Court of Appeal of Louisiana, Third Circuit.

Jan. 28, 1963.

John P. Godfrey and Thomas A. Self, Many, for plaintiff-appellant.

Hall & Coltharp, by L. H. Coltharp, Jr., DeRidder, for defendant-appellee.

Before FRUGE , SAVOY and CULPEPPER, JJ.

FRUGE , Judge.

This is a suit for workmen's compensation by plaintiff against Foster Forest Products, Inc. and its compensation insurer, Southern Pulpwood Insurance Co. arising out of an alleged injury sustained on or about September 14, 1960. The trial court rendered judgment in favor of defendants, dismissing plaintiff's suit, and he has appealed to this court.

There are three principal issues presented by this appeal. First, what was the relationship between plaintiff and Foster Forest Products, Inc., i.e., was it a relationship of principal and contractor, employer and employee, or buyer and seller? Second, did plaintiff receive injuries within the meaning of the workmen's compensation act? Third, what is the extent of plaintiff's disability?

The trial court in dismissing plaintiff's suit resolved the first issue by finding that a vendor-vendee relationship existed between plaintiff and Foster Forest Products, Inc. It therefore had no occasion to consider the other issues. Accordingly, we may also abstain from ruling on the remaining issues if we reach the same conclusion as the trial court.

The record discloses that defendant, Foster Forest Products, Inc., is a pulpwood producer and broker. At times it uses its own crew to cut pulpwood on tracts that it owns, or on tracts of land where it has purchased timber. However, it also purchases pulpwood from individuals at a set price per cord delivered to its mill.

The trial judge, in his written reasons, succinctly set forth his appreciation of the facts surrounding the relationship between plaintiff and Foster Forest Products, Inc. as follows:

'The evidence discloses that some time prior to the time plaintiff sustained his alleged injury he had been producing pulpwood together with his brother-in-law, Grady Williams. It seems that Grady Williams was himself a pulpwood producer. He sold his pulpwood truck to the plaintiff under an arrangment by which Williams was to continue to work with plaintiff and help produce pulpwood until such time as plaintiff could pay Williams for the truck out of plaintiff's earnings made in such operation. Thereafter they worked closely together. In fact it appears that Williams purchased timber which plaintiff and Williams converted into pulpwood and sold. The plaintiff hired such helpers as he desired and paid them such wages as he agreed upon with his help. Foster Forest Products, Inc. did not in any way supervise his operations or exercise any control whatever over the work performed by him. Plaintiff used his own equipment and worked at his volition.

'The plaintiff contends that he sustained the injury which forms the basis of this suit while working the timber from the F. E. Cole tract of land. He states that Mr. George W. Foster, president of the defendant corporation, took him out to the Cole tract of land and showed him the timber and showed him what to cut. Thereafter, he and Grady Williams with his workers went to the Cole property and began cutting the timber. Mr. Cole found them cutting the timber and stopped them. However, plaintiff was not present at that time; and Mr. Cole and Grady Williams reached an agreement and they proceeded to cut timber for possibly two weeks under that arrangement until plaintiff sustained his injury. The pulpwood cut under this arrangement was delivered to the yard of Foster Forest Products, Inc. The stumpage value of the timber was paid directly to Mrs. Cole by checks of the Foster Forest Products, Inc. and the remainder of the purchase price of the wood was paid to plaintiff who then paid his helpers.' (Tr. 309).

Upon further examination of the record, we note that Mr. Cole was certain that he never entered into a buy and sell agreement with Foster. Indeed, the evidence adduced at the trial of this case convinces us that title to the timber cut by Grady Williams and plaintiff did not vest in Foster until it was delivered to his mill. Further support for this conclusion is established by the fact that all of the timber cut by Grady Williams and plaintiff was not removed and delivered to Foster Forest Products, Inc.; nor was Foster Forest Products, Inc. required to pay for the timber cut but not picked up and hauled away. Certainly, if Mr. Cole and Foster had entered into an agreement whereby the latter was to pay for all timber cut on a stumpage basis, demand would have been made for such payment. Therefore, in our opinion, the timber was being cut and removed at the time of plaintiff's injury under an agreement entered into by Mr. Cole and Grady Williams. Accordingly, we find no manifest error in the trial judge's determination that the relationship between plaintiff and Foster was that...