Georgia-Pac. Corp. v. Crosby

• Decision Date: 18 February 1981
• Docket Number: No. 52347,GEORGIA-PACIFIC,52347
• Citation: 393 So.2d 1348
• Parties: CORPORATION, Employer v. Johnnie Gene CROSBY.
• Court: Mississippi Supreme Court

Page 1348

393 So.2d 1348

GEORGIA-PACIFIC CORPORATION, Employer v. Johnnie Gene CROSBY.

No. 52347.

Supreme Court of Mississippi.

Feb. 18, 1981.

Crymes G. Pittman and Karen Spencer, Cothren, Pittman & Ferrell, Jackson, for appellant.

E. Howard Eaton, Taylorsville, for appellee.

Before BROOM, LEE and BOWLING, JJ.

LEE, Justice, for the Court:

The Mississippi Workmen's Compensation Commission entered an order granting compensation benefits to Johnnie Gene Crosby against Georgia-Pacific Corporation (self-insured) for total and permanent disability. Georgia-Pacific appealed to the Circuit Court of Scott County, which affirmed the Commission, and, from that judgment, Georgia-Pacific has appealed here.

Three (3) assignments of error are discussed in the briefs, but the question to be decided by this Court is whether Georgia-Pacific was the employer of Hosey Brothers Loggers (Hosey Bros.) and whether Hosey Bros. was an independent contractor, relieving Georgia-Pacific of any liability incurred by Hosey Bros. in its employee relationships.

On August 29, 1973, appellee was working as a sawyer for Hosey Bros. He cut a tree which lodged in another tree and upon cutting the second tree, the first tree came loose, fell on him, injured his spine, and rendered him a paraplegic, permanently and totally disabled.

For a period of eleven (11) months, Hosey Bros. made voluntary weekly payments of fifty-five dollars ($55.00) to appellee, but, at the end of that period, the payments were discontinued. Thereupon, appellee filed a claim for compensation benefits against Georgia-Pacific, who now contends that appellee was not employed by it, that he was employed by Hosey Bros., an independent contractor, and that Georgia-Pacific has no liability in the matter.

Mississippi Code Annotated Section 71-3-3 (1972) defines "independent contractor" for purposes of the Workmen's Compensation Act:

" 'Independent contractor' means any individual, firm, or corporation who contracts to do a piece of work according to his own methods without being subject to the control of his employer except as to the results of the work, and who has the right to employ and direct the outcome of the workmen independent of the employer and free from any superior authority in the employer to say how the specified work shall be done or what the laborers shall do as the work progresses; one who undertakes to produce a given result without being in any way controlled as to the methods by which he attains the result."

Factors for determining independent contractors have been discussed frequently in Mississippi decisions. One of the clearest pronouncements of the law, stated in Boyd v. Crosby Lumber and Mfg. Co., 250 Miss. 433, 166 So.2d 106 (1964), sets forth the control test. The Court said:

"An analysis of the pertinent rules and cases is necessary to show the reasons for affirmance of this award of compensation benefits. In general, it is said that the right to control, not actual control of, the details of the work is the primary test of whether a person is an independent contractor or an employee. Relevant characteristics or tests are usually listed, with all except the control test being considered merely indicia pointing one way or the other. See A.L.I., Rest. Agency 2d (1958), § 220, p. 485; Kisner v. Jackson, 159 Miss. 424, 132 So. 90 (1931); Carr v. Crabtree, 212 Miss. 656, 55 So.2d 408 (1951); Shumpert Truck Lines v. Horne, 227 Miss. 648, 86 So.2d 499 (1956). No general rule can be stated as to the weight of these elements, over fifteen in number. Their significance varies according to the facts of each particular case. The weight to be given each of the factors pertaining to the employer-contractor question is ordinarily to be decided by the trier of facts. It is the ultimate right of control, not the overt exercise of that right, which is decisive. Probably the four principal factors under the control test, are '(1) direct evidence of right or exercise of control; (2) method of payment; (3) the furnishing of equipment; and (4) the right to fire.' 1 Larson, Workmen's Compensation Law, § 44." (Emphasis added). 250 Miss. at 440, 166 So.2d at 108.

Without detailing the evidence, the administrative judge found, and the Commission affirmed and adopted, the following:

(1) That at the time of the accident, Hosey Bros. had been cutting and hauling timber for Georgia-Pacific exclusively since May of 1972;

(2) That timber and logs were an integral part of the business of Georgia-Pacific at its plants at Bay Springs and Taylorsville, Mississippi;

(3) That the employees of Georgia-Pacific supervised the cutting of the timber by Hosey Bros.;

(4) That Georgia-Pacific varied the specifications and size of timber that was to be carried to each plant at its discretion, even though a contract was signed between Hosey Bros. and Georgia-Pacific, and that this was done in order to control the flow of material to each mill as it was needed;

(5) That Georgia-Pacific set the time that the timber could be loaded and unloaded by Hosey Bros.;

(6) That Georgia-Pacific set the price to be paid to loggers on each tract of timber based on its own policy;

(7) That Georgia-Pacific controlled the amount of timber that could be delivered to its plants at Bay Springs and Taylorsville, Mississippi, by placing the loggers on a quota even though the logger had a contract for a certain volume each week;

(8) That Georgia-Pacific could move the logger from one tract to another at its discretion even though the logger had a contract for a specific tract;

(9) That Georgia-Pacific and the logger had a series of short-term contracts from five (5) to twenty-eight (28) days in length, and...