Hebert v. Gates

• Decision Date: 02 March 1951
• Docket Number: No. 3341,3341
• Parties: HEBERT v. GATES.
• Court: Court of Appeal of Louisiana — District of US

Page 859

50 So.2d 859

HEBERT v. GATES.

No. 3341.

Court of Appeal of Louisiana, First Circuit.

March 2, 1951.

Bass & Brame, Lake Charles, for appellant.

R. W. Farrar, Jr., M. R. Stewart, Lake Charles, for appellee.

LOTTINGER, Judge.

This is a suit under the Workmen's Compensation Laws of the State of Louisiana, LSA-RS 23:1021 et seq., for total and permanent disability resulting from an accidental injury sustained by plaintiff in the course of his alleged employment with Stanley W. Gates, the defendant. The trial court, for oral reasons, held that plaintiff was engaged in a hazardous occupation, that plaintiff was employed by defendant, and that the accident occurred while plaintff was in the course of said employment, so as to entitle plaintiff to compensation for said injury. The lower court found disability at 50% of the loss of a hand, and rendered judgment at $15 per week for 150 weeks commencing April 19, 1949, with 5% interest thereon per annum on all deferred payments until paid; plus $131.30 for medical expenses, with 5% interest per annum thereon from date of judicial demand until paid, plus all costs. Both parties appeal, plaintiff requesting that said judgment be increased.

The accident occurred on April 19, 1949, while plaintiff was engaged in cutting timber into ties on the Grabbert property in Calcasieu Parish, Louisiana. He would cut the timber into logs and haul the logs to a sawmill owned and operated by a Mr. Goss. The mill would then cut the logs into ties and plaintiff would haul the ties, in his own truck, to locations specified by Mr. Godair, defendant's supervisor. Defendant would pay plaintiff at the rate of 65cents per tie. Out of said sum, plaintiff would pay a helper at the rate of $25 per week and would pay all gas and oil required in operating the mill and his truck. Goss would receive the trimmings and sidings from the logs as his compensation. Plaintiff had been engaged in these operations for defendant since the latter part of 1948. In said operations he was required to use an axe, cross cut saw, log chain and log hook.

At the time that plaintiff entered the scene of these operations, the cutting of ties was being done at a place called Hecker. The entire operation was then conducted by Goss. Upon being approached by plaintiff, Goss agreed to let plaintiff cut the timber, and both plaintiff and Goss approached Godair with the request that Godair issue a check directly to plaintiff for the number of ties cut, which request was agreed to by Godair at that time. The record also shows that Goss received a certain price per tie while the operations were conducted at Hecker, in addition to the siding and trimmings. During the beginning of 1949, the exact date is not clear, it appears that all the timber was cut on said tract, and it was necessary to move to a new location. The evidence shows that the arrangements for purchase of the timber on the Gabbert tract was made by Godair. He agreed, with Gabbert, that payment for timber cut would be by checks on the defendant's company. It appears that Gabbert and Godair selected the timber to be cut, and an agent of Mr. Gabbert marked the trees to be cut.

Upon moving from Hecker to the Gabbert tract, it was necessary to move the mill to the new location. Plaintiff testified that the site for setting up the mill on the new location was selected by Godair. Godair testified that he did not select the site, but that he did show plaintiff the extent of the Gabbert tract so that plaintiff would not set up the mill elsewhere and thus be guilty of trespassing. The mill was moved to the new location by plaintiff and Goss.

Defendant's supervisor, Mr. Godair, went to the scene of the operations approximately once a week. At times he would direct plaintiff as to how the timber should be cut. Gabbert would be paid a stipulated price per tie, depending on the size and the quality of the timber cut. The evidence shows that, at times, deductions were made from plaintiff's checks for compensation insurance. However, it was not clearly shown whether said deductions were made prior to the accident or subsequent thereto. Nevertheless, the plaintiff was not so covered at the time of the accident.

Plaintiff introduced into evidence statements given him by defendant showing the amount of ties delivered by plaintiff, and the prices therefor. These statements also show stumpage paid Mr. Gabbert. Said statements designate the plaintiff as 'producer.' One of the said statements (p-11) contains the following notation:

'Mr. Hebert, you have 11 Pine and 1 Gum which are too long. I will pay you for them Fri. if you will cut them off they are measured and marked.

Hereafter all ties must be stacked properly and the two bottom stringer ties must be on blocks 6 in. above the ground and all bark and spurs removed or I cannot pay for them.'

Plaintiff testified that he earned, prior to the accident, in excess of $50.00 per week. This was after all expenses, such as helper, gas, oil, etc., was deducted. Subsequent to the accident, plaintiff attempted to do the same type of labor. However, due to the injury, his ability to do said labor was greatly reduced, and he was replaced by a Mr. Miller. Plaintiff stated that his earning capacity, subsequent to the injury, was about 50% of what it was prior to the accident. After being replaced by Miller, plaintiff secured a job as janitor; his pay for this was $130.00 per month.

Defendant claims that the relationship between plaintiff and defendant was that of vendor and vendee. They claimed that plaintiff cut the ties and delivered them to the sites where they were to be picked up by the railroad companies who purchased the ties from defendant. They admitted that they did suggest, at times, how the ties were to be cut, but that same was done because they would not be able to purchase same from plaintiff otherwise, as the ties had to meet specifications of the railroad companies. They claimed that their action in paying Gabbert directly for the stumpage cut was merely for the purposes of assuring Gabbert that he would be paid the agreed price, and that same assisted plaintiff in that he was relieved from the necessity of keeping records on the timber cut and having to pay Gabbert from the money received by plaintiff.

We believe that the trial court correctly found the relationship existed between plaintiff and defendant to be that of employer and employee. Although defendant claimed that the relationship was that of vendor and vendee, there are certain matters which lead us to believe otherwise. The record conclusively shows that a certain amount of direction and control was exercised over plaintiff by the agent of defendant. We believe that the evidence shows that defendant could have exercised more control over the operations of plaintiff had they so chosen. It was shown that defendant purchased and paid for the timber which plaintiff cut into cross ties; that defendant's agent, together with Gabbert, pointed out the trees which plaintiff was to dut; that defendant directed the manner in which the ties were to be cut, hauled and stacked; that the relationship could be terminated at any time by defendant; and that, intermittently during the relationship, deductions were made in plaintiff's paycheck for compensation insurance. Plaintiff, Goss and Miller, the party who took plaintiff's place after his discharge, all testified that the timber was purchased by defendant; that they cut same for defendant; and that they were paid by the number of ties cut. Miller testified that he saw Godair, defendant's agent about taking over the plaintiff's job. He further testified that, on one occasion, he asked Godair about the tops of the trees which were not cut into ties, whereupon, Godair told him that he could have them if he wanted as they, the defendant, had bought them. The evidence shows that plaintiff did not own the trees or had anything to do in regard to acquiring the ownership thereof, or the ties cut therefrom, and therefore, he could not have sold them as is claimed by defendant; he was merely producing the ties for the defendant.

The case of Deason v. Coal Operators Casualty Co. et al., La.App., 43 So.2d 630, 631, is strikingly similar to the present one. In that case, the relationship was held to be that of employer and employee rather than that of independent contractor, as was alleged by the defendant. Plaintiff, in that case, was engaged in cutting wood. He used his own trucks and hired and paid his own help. He delivered the wood to the railroad yard, as directed by defendant, and was paid at the rate of $10,50 per cord. He could be moved from one tract of land to another. The court, in that case, said: 'The agreement between the parties was verbal. It involved no specified quantity of wood, no specific length of time, and no particular tract of timber. It is clear that either Mr. Davis or Mr. Deason could have terminated the agreement at will. While it does not appear that Mr. Davis exercised any particular supervision over Mr. Deason's operations, the Court concludes that inasmuch as he could terminate Mr. Deason's employment at will, he thereby had the effective power to supervise and control Plaintiff's operations.'

The court, in the Deason case, then went on to hold that case to be in the same pattern as Collins v. Smith, La.App., 13 So.2d 72 rather than that of Murphy v. Tremont Lumber Company, La.App., 22 So.2d 79. In the Collins case again the facts were very similar to that of the present case. There the court held the right to supervise or control, rather than the exercise of said right as the controlling factor to be the distinguishing factor. In the Murphy case, the agreement between the parties was a written contract, which was very complete and extensive, thus rendering the type of agreement entirely different from the present one.

We are inclined to believe that the facts and the law reviewed...