McDonald v. Hall-Neely Lumber Co

• Decision Date: 27 March 1933
• Docket Number: 30463
• Citation: 165 Miss. 143,147 So. 315
• Court: Mississippi Supreme Court
• Parties: MCDONALD v. HALL-NEELY LUMBER CO

147 So. 315

165 Miss. 143

MCDONALD v. HALL-NEELY LUMBER CO

No. 30463

Supreme Court of Mississippi

March 27, 1933

(In Banc.)

1. MASTER AND SERVANT.

One is not "master" who is interested in ultimate result of work done as whole, but not in details of performance.

2. MASTER AND SERVANT.

"Independent contractor" is one rendering service in course of occupation representing will o£ employer only as to results and not as to means of accomplishing it.

3. MASTER AND SERVANT.

Relation of master and servant as respects liability to third person does not exist unless master has substantial control over means and methods of carrying out contract.

4 AUTOMOBILES.

One hauling, in his own truck, logs for lumber manufacturer at certain price per thousand feet, manufacturer having no control over manner, method, or means, held "independent contractor," for whose negligence in operation of truck manufacturer was not liable.

Evidence disclosed that contractor was public hauler and that contract was verbal and provided that compensation would be certain price per thousand feet for all logs hauled, that contractor was to haul no specified number of logs, and was to haul when it suited him, using his own truck, and furnishing his own help, that in making trips, he sometimes drove his truck, and sometimes he employed another to drive it, and that the only control lumber manufacturer had over contractor's operations was as to where to get logs and where to unload them at mill.

GRIFFITH and ETHRIDGE, JJ., dissenting.

HON. T E. PEGRAM, Judge.

APPEAL from circuit court of Union county HON. T. E. PEGRAM, Judge.

Action by Miss Lucille McDonald against the Hall-Neely Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Affirmed.

Fred B. Smith, of Ripley, and Fontaine & Adams, of Pontotoc, for appellant.

Generally the term independent contractor signifies one, who exercising an independent employment, contract to do a piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of the work, and who has the right to employ and direct the action of the workmen, independently of such employer and free from any superior authority in him to say how any specified work shall be done, or what the laborers shall do as it progresses; one who undertakes to produce a given result without being in any way controlled as to the method by which he obtains that result. The principal consideration in determining the question is the right to control the manner of doing the work.

31 Corpus Juris, pages 473, 474.

The three primary attributes of an independent contractor is that he is to do a specified piece of work without the control of his employer and in which his employer is only interested as to the result.

39 C J., 315 and 316.

It is not the fact of actual interference with the control but the right to interfere that makes the difference between an independent contractor and a servant or agent. If the employer has the right of control, it is immaterial whether he actually exercises it.

39 C. J., page 316; Kelly v. Hoosac Lumber Company, 113A, 818.

If the employee is an independent contractor, employed to do a specific piece of work, without the control of his employer, and in which the employer is only interested in the result, then of course the employer has no right to step in at any time and terminate the work and discharge the employee.

Bristol, etc., Company v. Commonwealth Committee, 292 Ill. 16, 126 N.E. 599, 20 A.L.R. 761.

To constitute an "independent contractor" the contract itself must be one the performance of which will produce a certain understood and specified result--a contract which contemplates a definite beginning, continuance, and ending. A test of the relationship between the employer and the employee is the right of the employer under the contract to control the manner and continuance of the particular service and the final result. No single fact is more conclusive as to the effect of the contract of employment, perhaps, than the unrestricted right of the employer to end the particular service whenever he chooses, without regard to the final result of the work itself.

Cockran v. Rice, 26 S.D. 393, 128 N.W. 583, Ann. Cas. 1913B, 570.

If the employer had a right to terminate the contract at any given time, then this "gives him potential control" over the person employed and shows conclusively that the latter was not an independent contractor.

Evans v. Dare Lumber Company, 174 N.C. 31, 93 S.E. 430.

The mode of payment is not decisive.

N. O. & N.E. R. R. Co. v. Reese, 61 Miss. 587; Atlantic Transportation Company v. Coneys, 82 F. 177; Franklin Coal & Coke Company v. Industrial Commission, 296 Ill. 329, 129 N.E. 811; Hamilton v. Oklahoma Trading Company, 124 P. 38; Lewis v. Detroit Vetrified Brick Company, 164 Mich. 489, 129 N.W. 726; Pottorff v. Fidelity Coal Mine Company, 86 Kan. 774, 122 P. 120; Allen v. Bear Creek Coal Company, 43 Mont. 285, 115 P. 673; Tiffin v. McCormack, 34 Ohio St. 638.

Ten separate tests by which it can be determined whether one was a servant or independent contractor are:

Whether the principal master has the power to terminate the contract at will; whether be has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; whether be furnishes the means and appliances for the work; whether he has control of the premises; whether be furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; whether he has the right to prescribe and furnish the details of the kind and character of work to be done; whether he has the right to supervise and inspect the work during the course of the employment; whether he has the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the sub-employees and to fix their compensation; and whether he is obliged to pay the wages of said employees.

Kisner v. Jackson, 132 So. 90; Natchez Coca Cola Bottling Co. v. Watson, 160 Miss. 175.

Our court laid down four tests as being conclusive of the relation. (1) The right of selecting the servant; (2) The right to discharge the servant; (3) The right to control the, servant; (4) That he is not a master who is interested in the ultimate result of the work done as a whole but not in the details, of its performance.

N. O. B. R. C. & M. Railroad Co. v. Norwood, 62 Miss. 565.

The master must, have control and direction, not only of the employment to which the contract relates, but to its details; and shall have the right to employ at will, and have proper cause to discharge those who serve him.

Louis Werner Saw Mill Company v. Northcutt, 134 So. 156.

Section 2240, Code of 1930, gives every employee of a sawmill operator a lien on all lumber and timber handled for his wages and under this section a hauler of timber is a servant and not an independent contractor.

Hinton & Walker v. Pearson, 107 So. 275.

B. N. Knox, of New Albany, for appellee.

An independent contractor is one who renders service in the course of an occupation, respecting the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.

26 Cyc. 970; 31. C. J. 473; Callahan v. Rayburn, 110 Miss. 117; Till v. Fairbanks, 111 Miss. 123; Crescent Baking Co. v. Denton, 112 So. 21; Vicksburg Gas Co. v. Ferguson, 140 Miss. 543; Woods v. Clements, 114 Miss. 301; Norton v. Day Coal Co., 180 N.W. 907.

The important tests are whether the alleged "independent contractor is one who renders service in the course of an occupation representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished," and that he is not a master who has no "right to control the servant; and who is interested in the ultimate result of the work alone as a whole, but not in the details of the performance;" and "the main element required to constitute the relationship of master and servant is that the servant be subject to the control of the master in carrying on the business at the time of the injury.

Kisner v. Jackson, 132 So. 90.

Every agreement by which one, person undertakes to produce certain results for another infers an implied condition that the latter shall have the right of refusing to accept the results finally obtained if they do not constitute a satisfactory execution of the agreement. This, however, does not destroy the independence, of the contract if the right of the employer to exercise a certain measure of control goes no further than to enable him to secure the proper performance of the work.

Uppington v. N. Y., 165 N.Y. 222, 53, L.R.A. 550.

One who does teaming work for a person who merely directs him what to haul and where to, and leaves all details of the work to the employee, is a contractor and not a servant.

McCarthy v. Muir, 50 Ill.App. 510.

The owner of a, team and his driver occupied a position of an independent contractor toward a person whose goods are hauled by the team under an agreed price per week, where the owner has exclusive care, control and management of the teams and all details as to route and speed are left to such owner and his driver.

Wadsworth Highland Company v. Poster, 48 N.E. 163.

When a person is engaged in doing a job or piece of work under an employment of contract which leaves to him the independent use of his own skilled judgment means and servants in the execution of it, he is not the agent or servant of the general employer.

Blake v. Ferris, 5 N.Y. 48, 55 Am. Dec. 304.

One whom the...