Kisner v. Jackson

• Decision Date: 26 January 1931
• Docket Number: 28941
• Citation: 132 So. 90,159 Miss. 424
• Court: Mississippi Supreme Court
• Parties: KISNER v. JACKSON

132 So. 90

159 Miss. 424

KISNER v. JACKSON

No. 28941

Supreme Court of Mississippi

January 26, 1931

Division B

(Division A. Suggestion of Error Overruled Mar. 9, 1931.)

1. MASTER AND SERVANT. Tests to be applied in determining whether relationship of "independent contractor" or "master and servant" exists stated.

Tests to be applied in determining whether relationship of independent contractor or master and servant exists are whether principal master has power to terminate contract at will, to fix price for work, or vitally controls manner and time of payment; whether he furnishes means and appliances for work, has control of premises, furnishes materials upon which work is done, and receives output; whether he has right to prescribe and direct details of work, supervise and inspect work; whether he has right to employ and discharge subemployees and fix their compensation; and whether he is obliged to pay the wages of the employees.

2 CONTRACTS.

Contracts including what may be done under them as written, must be kept within established public policy of state.

3. MASTER AND SERVANT. Lessee of sawmill and equipment, under express terms of lease to operate same, held not "independent contractor," and therefore lessor was liable for injuries to employee.

Owner of sawmill and equipment leased same to be operated as a spoke and saw mill. Contract provided that lessee should manufacture logs or blocks in such sizes or dimensions as may be desired by the lessor's company, and to deliver same to railroad at point shipment desired, at such price as may be agreed upon; and required lessor to furnish lessee money for pay roll, same to be charged to lessee and deducted from amount due him. Contract expressly provided that lessor's company should in no manner be liable for any wages or hire of any employees engaged in operation of business and in no manner liable for any accidents or injuries resulting in operation thereof.

HON. J I. STUTRDIVANT, Judge.

APPEAL from circuit court of Clay county, HON. J. I. STURDIVANT, Judge.

Action by J. M. Kisner against Claude Jackson, doing business under the name and style of the West Point Spoke Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

B. H. Loving, of West Point, for appellant.

The vital test in determining whether a person employed to do certain work is an independent contractor, or a mere servant, is the control over the work which is reserved by the employer. Stated as a general proposition, if the contractor is under the control of the employer, he is a servant; if not under such control, he is an independent contractor. The ultimate question is not whether the employer actually exercised control over the doing of the work, but whether he has the right to control. The employer may in fact leave to the contractor the details of the work, but if the former had the absolute power to control the work, the contractor is not independent.

14 R. C. L., page 67, sec. 3.

The relation between the parties is, however, to be determined from all of the surrounding indicia of control and the sole circumstance that the employer has reserved the right to terminate the work and discharge the contractor does not necessarily make the contractor a mere servant.

The courts do not make the right to discharge the employee the decisive test whether he is an independent contractor, but look to the broader question whether he was in fact independent or subject to the control of the person for whom the work is done, as to what should be done and how it should be done.

14 R. C. L., page 72, sec. 9; Evans v. Dare Lumber Co., 174 N.C. 31, 93 S.E. 430, 30 A. L. R. 1498; Chicago R. I. & P. R. Co. v. Bennett, 20 A. L. R. 761, and Annotations; 5 R. C. L. (Per Supp.), at page 3519; Hinton & Walker v. Pierson, 142 Miss. 50, 107 So. 275.

Frank A. Critz, of West Point, for appellee.

An independent contractor is one who renders service in the course of occupation representing the will of employer only as to result.

Hutchinson-Moore Lumber Co. v. Pittman, 122 So. 191; Warrior Pratt Coal Co. v. Shereda, 62 So. 721; Hubbard v. Coffin & Leake, 67 So. 697; Woodward Iron Co. v. Wade, 68 So. 1008.

OPINION

Griffith, J.

Appellant was injured by the breaking of a belt, alleged to have been at the time defective and dangerous, in a hardwood mill owned by appellee, who was doing business under the name and style, West Point Spoke Company. The defense mainly relied upon, and upon which the court acted in granting a peremptory instruction for the defendant, was that the mill was being at the time operated by J. A. Johnson as an independent contractor, and that appellant was the employee of Johnson, and not of appellee.

The contract between Johnson and appellee reads as follows:

"Whereas the West Point Spoke Co., is the owner of a certain saw mill and equipment located about nineteen miles north west of West Point near the Langford place, and whereas J. A. Johnson desires to lease the mill and equipment to operate the same as a spoke and saw mill, it is hereby agreed by and between the said parties that the said West Point Spoke Co., does hereby lease to J. A. Johnson the above mill.

"The said J. A. Johnson is to manufacture the logs or blocks that are put on the yard by the West Point Spoke Co., into spokes or dimension stock, in such sizes or dimensions as may be desired by the West Point Spoke Co., and to deliver the same to R. R. at the point shipment desired, at such price as may be agreed upon.

"The said West Point Spoke Co., agrees to furnish the said J. A Johnson money each two weeks for his pay roll and to charge him with same and deducting it from amount due said J. A. Johnson for manufacturing the spokes or dimension stock.

"The said J. A. Johnson, for the use of said above described mill binds himself to manufacture all the timber delivered on the yard by West Point Spoke Co.

"It is furthermore...