Massey v. Poteau Trucking Co., 4-9991

• Decision Date: 16 February 1953
• Docket Number: No. 4-9991,4-9991
• Citation: 254 S.W.2d 959,221 Ark. 589
• Parties: MASSEY v. POTEAU TRUCKING CO. et al.
• Court: Arkansas Supreme Court

Page 959

254 S.W.2d 959

221 Ark. 589

MASSEY v. POTEAU TRUCKING CO. et al.

No. 4-9991.

Supreme Court of Arkansas.

Feb. 16, 1953.

Robisnon & Edwards, Van Buren, for appellant.

Shaw, Jones & Shaw, Ft. Smith, for appellee.

GRIFFIN SMITH, Chief Justice.

The question is whether--as a matter of law based, as it is contended, on undisputed facts--an injured workman who sought compensation under Act 319 of 1939, as amended, (and whose claim was rejected by the commission and circuit court) was an employe of a sub-contractor; or, conversely, was he engaged to do a specific task according to his own methods, without being subject to control except as to results? See Ice Service Company v. Forbess, 180 Ark. 253, 21 S.W.2d 411, cited in Hobbs Western Company v. Carmical, 192 Ark. 59, 91 S.W.2d 605.

Leonard W. Massey filed his claim alleging accidental injuries within the meaning of the Compensation Act while the relationship of employer and employe existed in respect of duties owed Poteau Trucking Company in 1950.

Ben M. Hogan Company held a state highway department contract to surface part of Highway 59 north of Van Buren. Arkhola Sand & Gravel Company maintained a mixing plant at Van Buren and sold the prepared asphalt to Hogan; and Hogan, in turn, arranged with Poteau to transport the mixture to the point of use. Necessarily, as construction progressed, distance from Arkhola to the point of application increased. Hogan's haulage commitment was to pay Poteau five and a half cents per ton mile. Nature of the so-called 'mix' required prompt delivery, but Arkhola's production capacity varied as water content of the sand it utilized increased or decreased. Poteau, domiciled in Oklahoma, sent five of its trucks for use in delivering the material.

Certain local truckowners sought procurement of contracts when it became apparent that Poteau would be unable to handle maximum needs, and these truckers were at times permitted to participate in deliveries. One so employed was Massey, and the commission found from competent evidence that as owner of a truck he did public hauling.

The testimony indicates that the local truckowners persistently applied for positions at the chute where the mixture was supplied, and during a period of several days some were permitted to take loads--an operation supervised by a highway department inspector. An Arkhola representative acted with this employe. A requirement was that the inside of truck bodies be treated with a lubricant to prevent asphalt from adhering. Initially this lubricant was furnished by Arkhola, but when its supply became exhausted a drum belonging to Poteau was utilized. Another 'must' was that each load be covered with a tarpaulin. In the case here Massey furnished his cover.

A commission finding is that Poteau did not repair any of the local trucks, but its auto mechanic supervised the five it owned and kept them in order. Drivers of these trucks were paid salaries computed on an hourly basis from which social security charges and other mandatory deductions are shown.

When appellant's truck was loaded he took it to scales maintained by the City of Van Buren. Through state arrangements local truckers would obtain triplicate tickets showing tonnage. A copy or original was delivered to Arkhola, Hogan, and the trucker. Massey forwarded his accumulated tickets to Poteau and received payment at four and a half cents per ton mile. This gave Poteau a prima facie profit of one cent per ton mile. Massey was paid $122.12 without deductions for social security or otherwise.

In addition to Massey's operations, six other truckers did hauling on the Hogan job, receiving pay checks from Poteau ranging from $69.11 to $646.48.

Masssey's accident occurred late of August 15th after he had delivered his load. In returning to Van Buren his truck slipped or skidded, then overturned. A sentence in the commission's statement of the case is that 'The evidence is in conflict whether the claimant was on his way home or whether he was on his way back to the mixing plant'. The factual finding is that Massey was not Poteau's employe when the injury occurred.

Was Massey an employe of Poteau, the sub-contractor?

The rule for determining which of the two relationships exists is that if there is nothing in the contract showing an intent upon the part of the employer to retain control or direction of the manner or methods by which the party claiming to be independent shall perform the work, and there is no direction relating to the physical conduct of the contractor or his employes in the execution of the work, the relation of independent contractor is created. The governing distinction is that if control of the work reserved by the employer is control not only of the result, but also of the means and manner of the performance, then the relation of master and servant necessarily follows. But if control of the means be lacking, and the employer does not undertake to direct the manner in which the employe shall work in the discharge of his duties, then the relation of independent contractor exists. Moore & Chicago Mill & Lumber Company v. Phillips, 197 Ark. 131, 120 S.W.2d 722.

A decision where the facts are strikingly similar to those here is Wren v. D. F. Jones Construction Company, 210 Ark. 40, 194 S.W.2d 896. Wren's widow claimed compensation for her husband's death and the defending construction company denied that Wren was its servant. The court's opinion is summarized in Headnote No. 9: 'Where the deceased was engaged to haul gravel for appellee at $3 per load, appellee loading the truck and showing the deceased where to dump the gravel, * * * the finding by the Commission that the deceased was an independent contractor is supported by substantial evidence' . The opinion calls attention to Parker Stave Co. v. Hines, 209 Ark. 438, 190 S.W.2d 620, 622, where it was said that in determining whether one claiming benefits is an employe or an independent contractor the compensation Act must be given a liberal construction in favor of the workman, 'and any doubt is to...