Leaf River Forest Products, Inc. v. Harrison, 52327

• Decision Date: 21 January 1981
• Docket Number: No. 52327,52327
• Citation: 392 So.2d 1138
• Parties: LEAF RIVER FOREST PRODUCTS, INC. v. B. Alton HARRISON.
• Court: Mississippi Supreme Court

Page 1138

392 So.2d 1138

LEAF RIVER FOREST PRODUCTS, INC. v. B. Alton HARRISON.

No. 52327.

Supreme Court of Mississippi.

Jan. 21, 1981.

R. Web Heidelberg, R. W. Heidelberg, Heidelberg, Sutherland & McKenzie, Hattiesburg, for appellant.

James A. Becker, Jr., Watkins & Eager, Jackson, for appellee.

Before ROBERTSON, BROOM and HAWKINS, JJ.

BROOM, Justice, for the Court:

Respondeat superior highlights this tort action appealed from the Circuit Court of Scott County. There plaintiff B. Alton Harrison won a $433,000 jury verdict and judgment for severe personal injuries he received when his car, driven by him, collided with a log truck driven by Hartis Donald, an employee of defendant Claude McDonald d/b/a C & D Logging (McDonald herein). Theory of plaintiff's case is that McDonald was the employee-servant of defendant/appellant Leaf River Forest Products, Inc. (Leaf River herein) at the time of the accident thereby making Leaf River vicariously liable for the negligent acts of McDonald's driver. Chief issue is whether the evidence was sufficient to make out a jury issue of respondeat superior.

Before daylight, May 2, 1978, Hartis Donald was operating McDonald's log truck on Highway 35 in Scott County near Homewood headed South and attempting to back the rig into a woods road which intersects the highway. Because he passed the intersection a short distance, he had to back the trailer into the woods road. While backing up, the trailer jack-knifed across Highway 35 about the time that plaintiff Harrison came over a hill about one-fourth mile South of the truck. Realizing he could not get his logging rig off the highway before the oncoming (Harrison's) car arrived, McDonald's driver got out on the gas tank of the truck and with his hands attempted to flag Harrison. Apparently the truck's headlights were directed southerly along Highway 35 and blinded Harrison as he headed North. Harrison crashed into the truck's coupling pole which extended across the highway. There were no flares, flashing lights or warning devices to put Harrison on notice that the highway was blocked. Harrison was grievously and permanently injured, and no argument is made that the $433,000 verdict is excessive. McDonald's insurance carrier paid $102,525, its policy limits, to the plaintiff. Other facts will be stated where appropriate herein.

Leaf River took the position below and here that Claude McDonald was an independent contractor, and therefore Leaf River could not be vicariously liable for the negligence of Hartis Donald, driver of McDonald's log truck. Plaintiff Harrison took the position that McDonald was not an independent contractor but an employee of Leaf River. The issue of whether McDonald was an independent contractor or employee-servant of Leaf River was submitted to the jury which found against McDonald and Leaf River. Only Leaf River appeals.

McDonald for many years has been a large operator in the business of logging. Leaf River neither cuts nor hauls logs but has a sawmill operation where it manufactures lumber. McDonald owns his equipment including trucks, trailers, loaders, skidders, saws and related items. Leaf River has its own sawmill equipment and since it began operating in 1977 has bought logs from various logging contractors across central and south Mississippi. About fifteen months prior to the accident in which plaintiff was injured, McDonald was hauling timber for Leaf River and (though in lesser amounts) for other mills: Masonite, St. Regis, Scott Paper, and Crown-Zellerbach. He continued to cut and haul timber for Leaf River after the accident. He goes from one job to another with Leaf River when they have timber available. Leaf River paid McDonald on a weekly basis according to unit volume of production; and such payments totaled $165,449 in 1977 and $310,552 in 1978. During 1977 and 1978, McDonald produced and sold from tracts to others which had no connection with Leaf River. He purchased some hardwood from Leaf River and sold it on his own to other mills which was the case on the tract being cut when the accident occurred. Leaf River gets approximately fifty percent of its logs from timber it purchases and the remainder from contractors who purchase and sell to Leaf River. McDonald and the other contractors doing business with Leaf River, while contracting with Leaf River, also purchase timber on their own.

For each timber tract which Leaf River purchases, there is a contract governing the cutting and hauling. Using a "logging cost analysis" sheet basis, the price payable is computed in the field. The contract involved in this case designates McDonald as an independent contractor not subject to Leaf River's control. According to the contract, hiring, firing, paying, and controlling of McDonald's employees is vested in him. Further, it provides that he will carry his own insurance: workmen's compensation and public liability. In his cutting and hauling from tracts other than those of Leaf River, McDonald did not execute written contracts.

Timber to be felled by McDonald was marked by Leaf River whose forester, Ray Sims, sometimes once a week, sometimes once a month, inspected to see if the proper timber was being cut at prescribed heights. Sims never supervised the details of how the loggers did the actual timber cutting. If trees were missed, Sims would tie ribbons around them and ask McDonald to return and cut them. If Sims complained about trees being cut too high or too low, McDonald would try to adjust his cutting accordingly.

In deciding whether the plaintiff made out a jury issue as to respondeat superior, both parties agree that we accept as true all testimony and reasonable inferences favorable to the plaintiff. Hobbs v. International Paper Company, 203 So.2d 488 (Miss.1967). In workmen's compensation cases we liberally construe the evidence in favor of the claimant in order to carry out the beneficent purposes of the act. Significant in cases like the case now before us is the contract executed by McDonald and Leaf River. Hutchinson-Moore Lumber Co. v. Pittman, 154 Miss. 1, 122 So. 191 (1929) states:

The contract between appellant and Magee fixed the relationship between the latter and the former, and that relationship was not one of master and servant, but instead, under the plain provisions of the contract, Magee was an independent contractor.

(122 So. at 193).

Here the applicable contract between McDonald and Leaf River consists of four typewritten pages and a "logging cost analysis" sheet. The contract states the various factors which are considered in order to come up with the per ton price which is entered upon the contract itself before the parties sign it.

Excerpted from the contract before us are the following provisions:

8. CONTRACTOR shall select and pay his own agents, servants, employees for the performance of the duties assigned by him to them in the performance of this contract. Such agents, servants and employees shall not be subject to any orders, directions or control of LEAF RIVER, but shall receive instructions from and be solely responsible to the CONTRACTOR. No relationship of master and servant shall exist between LEAF RIVER and the CONTRACTOR, or between LEAF RIVER and any agent, servant, employee of the CONTRACTOR and LEAF RIVER shall have no right to control the time, manner or method of doing the work. LEAF...