Hutchinson-Moore Lumber Co. v. Pittman.

• Decision Date: 06 May 1929
• Docket Number: 27838
• Court: Mississippi Supreme Court
• Parties: HUTCHINSON-MOORE LUMBER CO. v. PITTMAN. [*]

122 So. 191

154 Miss. 1

HUTCHINSON-MOORE LUMBER CO. v. PITTMAN. ^[*]

No. 27838

Supreme Court of Mississippi

May 6, 1929

(Division B.)

1. MASTER AND SERVANT. "Independent contractor" is one who renders service in course of occupation representing will of employer only as to result.

"Independent contractor" is one who renders service in course of occupation representing will of his employer only as to result of his work and not as to means by which it is accomplished.

2. MASTER AND SERVANT. One cutting timber under contract with mill, method being left to him, held independent contractor for whose acts resulting in plaintiff's injuries mill owner was not liable.

Where plaintiff, when injured, was employed by one who was obligated under contract with defendant to bring about certain net results in cutting timber for defendant's mill, method of bringing about results being left to him, and defendant had woods superintendent who merely supervised carrying out of contract and did not direct method, plaintiff's employer was independent contractor of defendant, and defendant was not liable for injuries to plaintiff while felling trees.

Division B

APPEAL from circuit court of Jasper county, First district.

HON. W L. CRANFORD, Judge.

Action by D. L. Pittman against the Hutchinson-Moore Lumber Company and others. From the judgment defendant named appeals. Reversed and rendered.

Judgment reversed.

J. A. McFarland and Deavours & Hilbun, for appellant.

At the conclusion of all the evidence in the case, it appeared without contradiction that appellee was not the servant of appellant, but was the servant of H. R. Griffin, at the time of the happening of the accident; that appellant had entered into a contract with the defendant Magee, in writing, several months before the accident, to saw down and saw up its timber on a part of its timbered lands, the timber involved being definitely described in the contract; that the appellant attempted no control over the manner or the method in which the work was done by Magee; that its superintendent Sidney Hickman occasionally inspected the operation in order to ascertain if the trees were being cut the distance from the ground provided in the contract, or if any of the timber was being left by crews. This was in no way an interference with the manner and method of doing the work. It further affirmatively appeared without question that the said Magee had entered into a verbal contract with H. R. Griffin to do the same work he had contracted to do with appellant; that Griffin employed, discharged, paid and directed all the laborers engaged in the operation; that appellee was employed by Griffin on the morning of the day of the accident. It follows, therefore, that the court erred in refusing the peremptory instruction requested by appellant at the conclusion of the evidence. Our supreme court has approved certain tests for the determination of this question. We first find these tests approved in New Orleans, etc., Ry. Co. v. Norwood, 62 Miss. 565. The statement of the rule therein was quoted with approval by the court in Till v. Fairbanks Co., 121 Miss. 123, 71 So. 298.

Our court in Callahan Construction Co. v. Rayburn 110 Miss. 107, 69 So. 669, approved the definition of "independent contractor," as follows: "An 'independent contractor' is one who renders service in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished." See 4 Words and Phrases, 3542. The last case of this nature decided by our court is Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21, where the court said: "The main essential required to constitute relationship of master and servant is that servant be subject to control of employer in operation of business or doing of thing at time in question." It would therefore seem that appellant was entitled to a peremptory instruction at the conclusion of appellee's evidence and was likewise entitled to a peremptory instruction at the conclusion of the case. McBride v. Madden Shingle Co., 138 N.W. 1077; Gay v. Roanoke, etc., Lumber Co., 62 S.W. 436; Knowlton v. Hoit, 30 A. 346; Scales v. First State Bank, 172 P. 499; Young v. Fusburg Lumber Co., 60 S.W. 654; Schroer v. Brooks, 224 S.W. 53; Hewitt Lbr. Co. v. Mills, 236 S.W. 949.

James W. Cassedy, James W. Cassedy, Jr., and Currie & Currie, for appellee.

From the testimony introduced by the appellee, it appears that Hickman, the superintendent of the appellant lumber company, was in actual control and supervised the whole woods operation, and was present on the job practically every day directing the log sawyers and their bosses Magee and Griffin in the manner of cutting the trees higher at the tops and lower at the stumps. This evidence is conclusive to show that the company through its superintendent Hickman, did not look to Magee for only the result of the work being done by the men under Magee and Griffin, but that the appellant lumber company, through its superintendent, actually supervised and controlled and directed the log sawyers under Magee and Griffin as to the manner and method and means of cutting the trees, and obtaining the results. On this evidence there can be no question but that it was proper to overrule the motion of the appellant lumber company for a peremptory instruction. The evidence taken as a whole shows that Hickman directed the log sawyers and Magee and Griffin insofar as the manner of cutting the trees were concerned, and that Hickman was in personal supervision over the work practically every day, and was at all times looking to the means and methods of doing the work, as well as looking to the results of the work. 31 C. J. 473, 14 R. C. L. 65-108. The fact that the work was being done under a contract is only partial evidence of independence, and is not conclusive by any means. Kirkhart v. United Fuel Gas Co., 86 W.Va. 79, 102 S.E. 806; Dishman v. Whitney, 121 Wash. 157, 209 P. 12, 29 A. L. R. 460.

In Callahan Construction Co. v. Rayburn, 110 Miss. 107, 69 So. 669, the court approved the definition given by 4 Words and Phrases, 3542, and a further definition from 1 Labatt's Master and Servant, is quoted. In that case, the servants of the contractor were the servants of the employer by virtue of the contract itself, reserving the right to the employer to give directions as to the manner in which to do the work. It was held that under such circumstances, both the contractor and servants are servants of the employer and he is not an independent contractor. There was no doubt in this case as to the employer directing the contractor to discharge his servants. In Magee's testimony he shows that the lumber company could terminate the contract at anytime it desired to do so, and further that Hickman, the superintendent for the appellant lumber company, could discharge him (Magee) at any time he desired to do so. The evidence introduced for the plaintiff shows that Hickman directed the means, manner and method of cutting the trees, and accomplishing the results contracted for by Magee. Following the Rayburn case on these facts it appears that the Rayburn case is practically conclusive as authority in support of appellee's contention that Magee was not an independent contractor.

Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21, is not authority in support of appellant's contentions because the Baking Company in that case was only interested in the results and not in the means or methods of obtaining the results. In the present case the personal supervision of Hickman and the actual direction and control of the means and method of cutting the trees show that the appellant lumber company was interested in the means and method of obtaining the results. Further, the contract itself between Magee and the appellant lumber company shows that it was not a usual contract in that it had a point of beginning but had no point of ending, thereby constituted not a specific contract to do a specific piece of work, but a contract for the continuation of the services of the defendant Magee, and as the defendant Magee's testimony shows, to be terminated at the will of the appellant lumber company, or at any time the appellant lumber company or its superintendent Hickman desired to stop the operations they had the right to do so. See 14 R. C. L. 65-108; 19 Am. & Eng. Ann. Cases 1918C, case note beginning p. 627; 65 L. R. A., note beginning p. 445.

Argued orally by Henry Hilbun, for appellant, and James W. Cassedy, for appellee.

OPINION

ANDERSON, J.

Appellee brought this action in the circuit court of Jasper county against appellant, Jack Magee, and Sydney Hickman, for damages for an injury received by appellee while engaged as a woods sawyer on timber lands of appellant caused by the alleged negligence of appellant. There was a trial resulting in a directed verdict and judgment in favor of Sydney Hickman, and in a verdict and judgment against appellant and Jack Magee. From the latter judgment appellant alone prosecutes this appeal.

As stated, at the time of his injury, appellee was a woods sawyer on timber lands belonging to appellant. Appellee and Raz Sims were saw partners and members of a timber crew, of something like twenty in number, engaged on appellant's lands in sawing down trees and sawing them up into logs to be manufactured into lumber by appellant's mill. The evidence on behalf of appellee tended to show that through the fault of A. J. Magee, in directing him and his saw partner, Sims, how to fell a tree in order to dislodge another tree that had fallen against still another, appellee received the injury for which he sued. Appellee undertook to fasten liability for his injury on ...