Marter v. Cathey-Williford-Jones Lumber Co.

• Decision Date: 17 October 1955
• Docket Number: No. 39727,CATHEY-WILLIFORD-JONES,39727
• Citation: 225 Miss. 118,82 So.2d 724
• Parties: J. H. MARTER, Administrator, Estate of Cecil Marter, Deceased, v.LUMBER CO. et al.
• Court: Mississippi Supreme Court

Page 724

82 So.2d 724

225 Miss. 118

J. H. MARTER, Administrator, Estate of Cecil Marter, Deceased, v. CATHEY-WILLIFORD-JONES LUMBER CO. et al.

No. 39727.

Supreme Court of Mississippi.

Oct. 17, 1955.

Smallwood, Sumners & Hickman, Oxford, Leon Provine, Grenada, for appellant.

Watkins & Eager, Shelby Rogers, Jackson, for appellee.

ROBERDS, Presiding Justice.

This proceeding involves a claim under the Mississippi Workmen's Compensation Law. Chap. 354, General Laws of Miss.1948, as amended by Chap. 412, General Laws of Mississippi 1950.

On the afternoon of March 23, 1951, Cecil Marter suffered serious injuries while unloading logs from a truck onto the mill and lumber yards of Cathey-Williford-Jones Lumber Company at Grenada, Mississippi. Marter died from those injuries April 3, 1951. We will call Cathey-Williford-Jones Lumber Company the Lumber Company in this opinion.

On April 30, 1951, Mrs. Willie S. Marter, the widow of Cecil Marter, and Jack Clark had an agreement under which Clark was to pay the hospital bill of $555.25 and funeral expenses of $200, and Mrs. Marter agreed to release Clark from liability for the death of Cecil Marter. Clark did pay Mrs. Marter $100. He also paid part of the hospital bill but at the beginning of the hearing of this matter before the attorney-referee on April 14, 1953, he yet owed $225.25 on that bill.

The Administrator of the Estate of Cecil Marter, after the foregoing alleged settlement, filed this claim against the Lumber Company and its insurance carrier for the benefit of the widow and dependent children of Cecil Marter. He asserted that the Lumber Company and its carrier were liable on the grounds, first that Marter was an employee of the Lumber Company when injured, but if mistaken as to that, then Clark was a subcontractor under the Lumber Company, employing eight or more employees, and that Clark carried no compensation insurance and tht therefore the Lumber Company was liable to claimants under Chap. 412, General Laws of Mississippi 1950, Sec. 3(4) p. 494. The Lumber Company and its carrier took issue on both contentions.

The attorney-referee found tht Clark was an independent contractor; that Marter was his employee; that Clark did not have eight employees when the accident happened, and that, therefore, the Lumber Company and its carrier were not liable to Marter's widow and dependent children. The Commission confirmed the findings and conclusions of the attorney-referee. The learned trial judge expressed grave doubts as to those findings and conclusions but finally affirmed the action of the Commission prompted by the impression that the facts of this case were sufficiently similar to those in Simmons v. Cathey-Williford & Jones Co., Miss., 70 So.2d 847, to bring this case within the results reached in the Simmons case, and he reluctantly affirmed the action of the attorney-referee and the Commission. From that judgment the Administrator appeals here.

We do not deal with the number of employees of Clark, or whether the provisions of Chap. 412, General Laws of Mississippi 1950, Sec. 3(4) at p. 494, are applicable as between the Lumber Company and Clark, under the facts of this case, for the reason we have concluded, after diligent study of this record, that under the peculiar situation here involved, Clark was not an independent contractor, and we think the Lumber Company is liable to the widow and dependent children of Cecil Marter under the Workmen's Compensation Act.

There is little dispute as to the ultimate controlling facts of this case. The problem is mainly one of law--reaching the correct conclusion from the facts. We will endeavor to state those facts as they appear from the record.

In 1944, and before that time, the Lumber Company was the owner and operator of a large lumber yard and sawmill at Grenada, Mississippi. It owned extensive tracts of timber. It cut in the woods and hauled to the sawmill its own timber, employing and paying all labor, and furnishing all machinery, tools and equipment, tents and camp houses, for that purpose. One of its employees was Cecil Marter. He performed some services in the woods but mainly he was a millwright about the mill. Jack Clark and one Liles were also employees. They were woods foremen. They supervised in the woods the cutting, loading and transportation of logs to the mill-yards. In 1948 the plant, as we will call the lumber and mill-yard, burned. In 1949 it was rebuilt. In the meantime the Workmen's Compensation Law had been enacted and approved April 13, 1948, and it went into effect January 1, 1949. Chap. 354, General Laws of Mississippi 1948. The Lumber Company says that upon the rebuilding of its plant it had decided, for economical reasons, to cease cutting and hauling its own timber, and that it would be best to let this work by contract. Claimants insist the Lumber Company adopted that change of policy because of enactment of the Workmen's Compensation Law. In any event, during the year 1949, Jack Clark and one Liles orally agreed to and did form a partnership for the purpose of felling, cutting into logs and transporting those logs to the plant of the Lumber Company. The Lumber Company agreed to pay them a named sum per thousand feet for the logs when delivered at the plant. The Lumber Company appears to have furnished to Clark and Liles all machinery, equipment, appliances and tools for the doing of this work. It is contended that this was a rental arrangement, but it is not shown what rental was paid. There is in evidence that the Lumber Company would credit Clark and Liles one or two dollars per thousand feet delivered on the yards. The Lumber Company advanced the necessary money for the foregoing operations. Clark and Liles took out workmen's compensation insurance. This was obtained for them through, and the premiums thereon paid by, the Lumber Company, charging the premiums to Clark and Liles. We do not detail this arrangement further because the relation between the Lumber Company and Clark and Liles as a partnership is not here involved except as they may throw light and bear upon the facts and circumstances existing later between Clark and the Lumber Company. This Clark-Liles partnership arrangement lasted some three or four months, when it was dissolved and Liles disappears from the picture. It is in evidence that the main reason for the dissolution of the partnership was to reduce the number of employees of Clark and Liles below eight so that compensation insurance would not have to be carried by them.

After Liles left, Clark made some kind of an arrangement with the Lumber Company for cutting and transporting logs to the plant. It is in evidence that the first contract was in writing. However, the contract was not produced and not introduced in evidence. A sample contract was offered but the attorney-referee excluded it and, therefore, it is not before us. It is admitted that all subsequent agreements between the Lumber Company and Clark were oral. Anyway, Clark says he continued to cut and haul the logs to the plant; that the Lumber Company was to pay him so much per thousand feet for the logs delivered on the yards. This is the way the operations were carried on:

The Lumber Company furnished Clark with all of the machinery and equipment and tools used in the cutting and transportation of the logs, except one Ford truck. This was the machinery, equipment, tools, etc., which the Lumber Company had used in that work while it was cutting and transporting its own logs. It consisted, in part, at least, of two large caterpillar tractors, a large trailer, a Ford truck, all needed logging equipment, tools, etc. Clark also quartered his labor in camp houses owned by the Lumber Company, and located upon, or near, the land from which the timber was being cut and removed. The Lumber Company also owned certain camping tents, equipped with furniture and cooking utilities needed for occupancy of such tents as living quarters. These were used by Clark. The witnesses say the first arrangement with Clark about all of this machinery, equipment, tools, etc., was that he was to be charged one or two dollars per week for its rental, this to be deducted from what the Lumber Company owed him for delivered logs. Just what amount was charged, or paid as rental is not shown. However, as we understand the record, there was no claim that a rental charge was being made for use of the camp houses and tents and their furnishings. During this supposed rental period, the Lumber Company advanced to Clark needed money with which to meet the payroll, for operation of and repairs to the machinery and equipment, and also for groceries for the laborers. This supposed rental arrangement lasted some three or four months. Then it is contended by the Lumber Company and its carrier that the Lumber Company and Clark had an oral understanding that the Lumber Company would sell to Clark the logging machinery, tools and equipment. We do not understand it is claimed this arrangement covered the camp houses and camping tents owned by the Lumber Company and used by Clark. We have neglected to state that the ...