Kughn v. Rex Drilling Co.
| Decision Date | 04 May 1953 |
| Docket Number | No. 38730,38730 |
| Citation | 64 So.2d 582,217 Miss. 434 |
| Parties | KUGHN v. REX DRILLING CO. et al. |
| Court | Mississippi Supreme Court |
R. L. Netterville, Natchez, for appellant.
Watkins & Eager and Butler, Snow & O'Mara, Jackson, for appellees.
This case is before us on appeal by Mrs. William B. Kughn, Sir., from a judgment of the circuit court of Franklin County affirming an order of the Mississippi Workmen's Compensation Commission disallowing the appellant's claim against the Rex Drilling Company and the Zach Brooks Drilling Company and their insurance carriers for compensation under the Mississippi Workmen's Compensation Act, Code 1942, Sec. 6985 et seq., on account of the death of her husband.
The record shows that the deceased, William B. Kughn, Sr., at the time of his death on October 2, 1951, was employed by the Rex Drilling Company as its production superintendent in Adams County. The Rex Drilling Company was engaged in the operation of several producing oil wells in the LaGrange Field near Natchez, and Kughn, as production superintendent, was required to check the production of each well and to make daily reports to his employer. Kughn was a full-time employee of the company and was paid a regular salary of $400 per month. He was furnished an automobile for use by him in the performance of his duties.
Kughn was also an experienced cable splicer, and as a side line Kughn spliced cables for drilling companies that might be in need of such service. Cable splicing could be done only by a workman who was specially skilled in that kind of work. Drilling companies had only an occasional need for the services of a cable splicer; but when a cable needed splicing, the need was urgent. Kughn's duties as production superintendent for the Rex Drilling Company were not exacting and he was able to splice cables when called on to do so without neglecting the duties of his regular employment. The claimant herself testified that Kughn handled on an average about three jobs each month, which provided a substantial supplement to the salary paid to him by his regular employer. The Rex Drilling Company had no knowledge of the fact that Kughn spliced cables for other companies from time to time while he was working for the Rex Drilling Company.
D. D. Slack was tool pusher for the Zach Brooks Drilling Company. A few days before his injury Kughn told Slack that if he had a splicing job that he needed to have done he would like to do the work. Kughn had spliced cables for Slack at other times, but had never done any work for the Zach Brooks Drilling Company. On October 2, 1951, Slack notified Kughn that he had a cable splicing job for him, and after completing his daily round of inspection for the Rex Drilling Company, Kughn during the early afternoon drove to the drilling site of the Zach Brooks Drilling Company in Franklin County for the purpose of splicing the cable for the Zach Brooks Drilling Company. Kughn carried his own tools with him. He was accompanied on the trip by his nephew, Melvin Kughn, who was interested in learning how to splice cables. When Kughn arrived at the drilling site, the driller in charge detailed three rough necks to help Kughn lay out the cable. One of these rough necks remained with Kughn until the job was completed. When Kughn had the job about half finished he began to get sick and started to sweating. He stopped a few minutes and rested. But after a few minutes rest he resumed his work and completed the job. He and Melvin Kughn then got in the automobile, which was owned by the Rex Drilling Company, and drove back to Natchez. Melvin Kughn drove the car. While they were on the return trip to Natchez, Kughn became unconscious and died about the time they arrived at the doctor's office in Natchez. The doctor testified that Kughn had been suffering from high blood pressure and an enlarged heart, and that Kughn's death was caused by a cerebral hemorrhage.
The appellant filed a claim against the Rex Drilling Company and the Zach Brooks Drilling Company and their insurance carriers. The claim was heard before the attorney-referee, and the attorney-referee entered an order denying compensation. The attorney-referee found that Kughn died from a cerebral hemorrhage brought on by exertion while splicing a cable for the Zach Brooks Drilling Company in Franklin County; that the deceased's illness and death did not arise out of and in the course of his employment with the Rex Drilling Company, for the reason that he had temporarily left his regular employment and the area where he was required to work and was splicing a cable in Franklin County for the Zach Brooks Drilling Company without the knowledge or consent of the Rex Drilling Company. The attorney-referee also found that the deceased was not an employee of the Zach Brooks Drilling Company at the time of his illness and death, but was an independent contractor doing a specific piece of work for an agreed sum of money to be paid to him by the Zach Brooks Drilling Company; and that his death was not compensable under the Mississippi Workmen's Compensation law.
The decision of the attorney-referee was affirmed by the commission on May 19, 1952, and the orders of the attorney-referee and the commission denying the appellant's claim were affirmed by the circuit court on August 27, 1952.
The attorney for the appellant contends on this appeal that the attorney-referee and the compensation commission erred in holding that the deceased was not an employee of the Zach Brooks Drilling Company at the time of his injury within the meaning of the Mississippi Workmen's Compensation Act, but an independent contractor. The appellant's attorney also contends that, in the event the court should hold that the deceased was an independent contractor and not an employee of the Zach Brooks Drilling Company, at the time of his injury, then, in that event, the court should hold that the deceased at the time of his injury was still an employee of the Rex Drilling Company and that his injuries are compensable by virtue of that employment.
After a careful study of the record we are of the opinion that the findings of the attorney-referee and the compensation commission are amply supported by the testimony of the witnesses, and that the judgment of the lower court should be affirmed.
In the case of Carr v. Crabtree, 212 Miss. 656, 55 So.2d 408, the Court held that, in determining whether a person was an employee or an independent contractor under the Workmen's Compensation Act, the ordinary common-law tests should be applied as in actions of tort.
There are many definitions of the term 'independent contractor' in the reported cases. But the courts have been unable to lay down a concise definition of the term that will furnish an accurate test to be applied in all cases involving the employment status of a person employed to perform service for another. One of the most frequently quoted definitions is to the effect that an independent contractor is one who, in exercising an independent employment, contracts to do certain work according to his own methods, and without being subject to the control of his employer, except as to the product or result of his work. 27 Am.Jur., p. 481, Independent Contractors, par. 2. And, in the case of Crosby Lbr. & Mfg. Co. v. Durham, 181 Miss. 559, 179 So. 285, 287, 854, this Court quoted with approval paragraphs 2 and 3 of the following statement of the master, servant and independent contractor relationship appearing in A.L.I., Restatement of the Law of Agency, Sec. 2, p. 11:
'(1) A master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service.
'(2) A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master.
'(3) An independent contractor is a person who contracts with another to do something for him, but who is not controlled by the other, nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking.'
In discussing the tests to be applied in determining whether the relationship of the person employed is that of a servant or an independent contractor, this Court in the case of Kisner v. Jackson, 159 Miss. 424, 132 So. 90, 91 said:
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