Hatten v. Olin Mathieson Chemical Corp.

• Decision Date: 19 December 1958
• Docket Number: No. 8879,8879
• Citation: 112 So.2d 135
• Parties: J. W. HATTEN, Plaintiff-Appellee, v. OLIN MATHIESON CHEMICAL CORP., Defendant-Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 135

112 So.2d 135

J. W. HATTEN, Plaintiff-Appellee, v. OLIN MATHIESON CHEMICAL CORP., Defendant-Appellant.

No. 8879.

Court of Appeal of Louisiana, Second Circuit.

Dec. 19, 1958.

On Rehearing May 27, 1959.

Shotwell & Brown, Monroe, for appellant.

Julius T. Long, Shreveport, for appellee.

AYRES, Judge.

This is an action for workmen's compensation. The defendants are Olin Mathieson Chemical Corporation, hereinafter referred to merely as Olin, and Charley Edwards. Plaintiff was engaged in cutting timber on the lands of the first named defendant and hauling the logs to the mill of the second named defendant to be manufactured into railroad cross ties and subsequently sold to Gross and Janes Tie Company. At the time of the accident, occurring February 12, 1957, plaintiff was engaged in loading a truck with logs; while standing on top of a load the logs 'bursted out' and, from the force and tension thereby applied to a binder chain, the chain struck plaintiff's right leg, knocking it out from under him, and broke both tibia and fibia.

No issue is presented, or any serious question raised as to plaintiff's injury nor that he was totally disabled at the time of trial. Therefore, should plaintiff be entitled to compensation, recovery should be for the period of such total disability, subject to the statutory maximum of 400 weeks. Mathis v. Standard Oil Co. of Louisiana, 16 La.App. 169, 133 So. 527; Vilce v. Travelers Insurance Co., La.App., 25 So.2d 256; Colbert v. Smith & Campbell, La.App., 39 So.2d 757; Malone Louisiana Workmen's Compensation, p. 353 et seq., § 280.

Plaintiff's position and contention is that he was either an employee of Olin or of Edwards, or of both, but, if an employee only of Edwards, that the relationship between Olin and Edwards was one of principal and contractor, and in that event the work performed and services rendered by plaintiff were an essential part of the principal's business of owning and operating a pulp and paper mill and of the necessary logging operations in connection therewith.

Defendants' position is that their relationship was not one of employer and employee, or of principal and contractor, but was one of vendor and vendee, pursuant to which Olin merely sold timber to Edwards, who was plaintiff's employer.

The conclusion reached by the trial court was that, in effect, plaintiff was an employee of Olin Mathieson Chemical Corporation. In accordance with the finding thus made, the court awarded plaintiff compensation against Olin as for total and permanent disability for the statutory maximum period of time at the rate of $32.50 per week. From the judgment Olin has appealed, and plaintiff has answered the appeal, praying that the weekly compensation be increased to $35 per week. Plaintiff, however, did not appeal from that portion of the judgment rejecting his demands as against Edwards. The primary question for determination is the matter of the relationship between Olin and Edwards, and as between the former and plaintiff.

The timber cut and removed from Olin's lands was undesirable, low grade hardwood. The program of removal entailed a two-fold purpose, (1) a realization on the investment in the timber, and (2) the removal of the timber in connection with the owner's program of reforestation. That the cutting and hauling of his timber, as was being done by plaintiff at the time he was injured, constituted an important and essential part of the work and program undertaken by Olin in its forestry program and in the reforestation of its lands admits of no serious dispute, nor can it be successfully disputed that this undertaking is a part of the trade, business and occupation of Olin. Neither can it be seriously contended that plaintiff was not rendering services for Olin.

The principal issue presented for resolution is purely factual and is to be determined from all the facts and circumstances in accordance with certain definite statutory rules, as well as rules firmly established in the jurisprudence of this State. For instance, under the facts referred to and as disclosed by the record, there is a presumption of a relationship of employer and employee between Olin and plaintiff.

'A person rendering service for another in any of the trades, businesses or occupations covered by this Chapter is presumed to be an employee under this Chapter.' LSA-R.S. 23:1044.

The Workmen's Compensation Statute is humane in its purpose and its scope should be enlarged rather than restricted so as to include all services that can be reasonably said to come within its terms, and to that end its provisions should be liberally construed. Dick v. Gravel Logging Co., Inc., 152 La. 993, 95 So. 99. The statute, with its amendments, was designed to cover all employees who might reasonably be brought under its paternalistic protection. Spanja v. Thibodaux Boiler Works, Inc., La.App., 2 So.2d 668; Thibodaux v. Sun Oil Co., La.App., 40 So.2d 761; Hebert v. Gates, La.App., 50 So.2d 859.

The statute likewise speaks with authority when it says:

'No contract, rule, regulation or device whatsoever shall operate to relieve the employer, in whole or in part, from any liability created by this Chapter except as herein provided.' LSA-R.S. 23:1033.

Moreover, it is firmly established in the jurisprudence that the findings of a trial court upon issues of fact are entitled to great weight, and that when only issues of fact are involved it is incumbent upon the appellant, in order to secure a reversal of the decision from which he appeals, to show manifest error in the judgment. Thornton v. Ellington, 209 La. 613, 25 So.2d 282; Falgout v. Johnson, 191 La. 823, 186 So. 349; Lejeune v. Lejeune, 187 La. 339, 174 So. 643; Wagner v. Shannon, 180 La. 233, 156 So. 289; Kruse v. Kruse, 175 La. 206, 143 So. 50; Guillory v. Fontenot, 170 La. 345, 127 So. 746; Currie v. Government Employees Ins. Co., La.App.,90 So.2d 482; Commercial Credit Corp. v. Morris, La.App., 107 So.2d 563.

The record establishes these facts. Soon after Olin acquired the pulp and paper mill of the Brown Paper Mill Company, Inc., and its timber lands, in September, 1955, a program was inaugurated to remove low-grade hardwood timber in conjunction with and as a part of its forestry program. Such timber as was merchantable as saw logs was first cut and removed, followed by the cutting and removal of such timber as was suitable for cross ties. One E. D. Nicklas, district supervisor of production of cross ties in that area of North Louisiana for Gross & Janes Tie Company, learning of defendant's program, discussed the matter with its representatives 'about starting tie production on their territory ourselves.' At that time Charley Edwards, who owned and operated a tie mill near Jena, Louisiana, and whose production had gone to Gross and Janes for many years, had already or was about to 'cut out'. Following Nicklas' visit and contact with Olin's representatives, Edwards contacted Olin's foresters, who arranged for Edwards to cut tie timber and eventually other lowgrade timber from Olin's lands. Accordingly, Edwards moved his mill to a site convenient to Olin's property near Chester in Winn Parish.

Plaintiff, who had therefore cut similar timber from Olin's property and hauled it to other mill operators, particularly one W. R. Roberts in Jackson Parish, applied to Edwards for similar work but was declined, whereupon he contacted W. D. Prince, a forester of Olin over the area or territory concerned, who told plaintiff he could haul to Edwards' mill timber from an 80-acre tract, which he designated and pointed out. On informing Edwards of the conversation, plaintiff testified Edwards said if Prince told him to do the hauling, it was all right as Prince was the boss. It was during this operation plaintiff sustained accidental injuries for which he here seeks to recover compensation.

In an effort to establish a relationship of vendor and vendee between the defendants, the defendants offered in evidence a series of sales agreements executed by Olin and Edwards covering an aggregate acreage of some 2,000 acres. The first of these agreements recites that the grantor, Olin, had designated certain timber suitable for cross ties on certain described lands and 'hereby agrees to sell unto the grantee (Edwards) all of the timber so designated at the following price: $0.30 per tie', followed by a stipulation as to the time within which such timber should be cut and removed, and that as the timber was cut it would be hauled to the grantee's mill and there scaled by the grantee. Payment by the grantee to the grantor was placed on a weekly basis, with the grantee agreeing to pay the severance tax on the timber cut. The grantee obligated himself to hold the grantor free of liability of any kind arising from the Grantee's operation under the contract. Later, the agreements were modified by reduction of the price to 20 cents per tie or stick and by the grantee agreeing to provide insurance covering workmen's compensation and public liability.

Other contracts of this series, in addition to ties, provided for the cutting and removal of timber suitable for staves and kindred purposes, a clause in one of which recites: 'This sales agreement subject to cancellation with 10 days written notice from grantor to grantee.' The nature and language of these instruments is unconvincing in establishing the relationship contended between the parties and for which they were offered in evidence. Their tendency is to establish the contrary. They evidence not only the right to control but the actual control exercised by Olin and its representatives over this operation. To that extent they furnish support to facts and circumstances, as heretofore and as will be hereinafter pointed out, that the relationship between Olin and plaintiff was that of employer and employee.

Edwards never saw the timber that he supposedly purchased. He was not concerned where the timber was...