McDowell v. Stilley Plywood Co.

• Decision Date: 14 March 1947
• Docket Number: 15925.
• Parties: McDOWELL et al. v. STILLEY PLYWOOD CO. et al.
• Court: South Carolina Supreme Court

41 S.E.2d 872

210 S.C. 173

McDOWELL et al. v. STILLEY PLYWOOD CO. et al.

No. 15925.

Supreme Court of South Carolina

March 14, 1947

Wise & Whaley and T. E. McCutchen, all of Columbia, for appellants.

J. Reuben Long and Ernest E. Richardson, both of Conway, for respondents.

BAKER Chief Justice.

The only issues in this appeal necessary to be decided are: (1) Was the deceased, Wilbert K. McDowell, at the time of his injury, an independent contractor or a subcontractor of Stilley Plywood Company, and (2) If an independent contractor or subcontractor, is Stilley Plywood Company liable for compensation for injuries to McDowell as a 'workman' under the terms of Section 19 of the Workmen's Compensation Act.

The appellant, Stilley Plywood Company, was a partnership engaged in the manufacture of lumber products, and owned a majority of the trees or timber which they manufactured into plywood although they also purchased from time to time suitable logs delivered at their mill from anyone offering same for sale at such price as they were willing to pay. But we are concerned here with the cutting and delivering of timber owned by said appellant; and the fact that on occasions, McDowell had cut and delivered timber to them other than that which they owned is merely incidental as a sidelight in determining his status.

On July 11, 1942, Stilley Plywood Company entered into a written logging contract with J. D. Anderson and Mack Anderson, in which contract the Andersons are referred to throughout as 'independent contractor,' and providing in part:

'Whereas it has been agreed by the said Stilley Plywood Company, a co-partnership, and the said J. D. Anderson and Mack Anderson, independent contractor, that they should enter into a contract whereby the said independent contractor shall cut log and haul to the mill of the said Stilley Plywood Company, a co-partnership, to Conway, South Carolina logs to be cut from timbers or lands owned by the said Stilley Plywood Company, a co-partnership, whether the same be owned by Stilley Plywood Company, a co-partnership, through timber leases or as owner of the fee simple title in the land,

'(1) Stilley Plywood Company, a co-partnership, shall from time to time furnish timbers to be cut, logged and hauled to the said mill by the said J. D. Anderson and Mack Anderson as independent contractor.

'(4) Since the value of the services to be performed by the independent contractor will vary from time to time by reason of differences in distances of hauls of various tracts of timber and in the growth per acre and cutting conditions and unforeseen weather conditions, it is agreed that the compensation to be paid by the employer to the independent contractor shall be paid upon the basis of the Doyle scale measurement of the logs per thousand feet but that the price per thousand feet shall be agreed upon by memorandum reduced to writing and signed by the parties from time to time before the commencement of the cutting upon each separate tract of land.

'(5) Stilley Plywood Company, a co-partnership, shall have the privilege of designating the tract of land upon which cutting operations shall be performed from time to time and where the cutting shall commence on each tract and to require that the independent contractor shall cut the timber according to sizes and species as directed at the commencement of the operations.

'(6) Stilley Plywood Company, a co-partnership, further reserves the privilege of requiring the independent contractor to discontinue cuttings upon any given tract at such time as it may desire if weather or other conditions are such that it is impractical to log or to use the timber from such tract at any given time.

'(7) Stilley Plywood Company, a co-partnership, further reserves and shall have the privilege from time to time of inspecting the operations to determine whether or not the timbers are being cut according to the terms of this contract but Stilley Plywood Company, a co-partnership, shall have absolutely no control over the actual cutting operations or over the employees of the independent contractor but shall only have the right to require of the independent contractor that the completed product be delivered to the said Stilley Plywood Company, a co-partnership, so as to conform to the sizes, dimensions and specifications as from time to time the independent contractor is directed to cut and deliver to the said mill of Stilley Plywood Company, a co-partnership.

'(10) Stilley Plywood Company, a co-partnership, shall at no time be in anywise liable or responsible for any compensation which the independent contractor agrees to pay to his employees or for any other duty, obligation or liability of the independent contractor to his employees.'

The deceased, McDowell, was then working for the Andersons, but the precise nature of their relationship was not ascertainable at the time of the hearing on this case (in May and August 1945) for the reason that all three of them were then dead.

A short while after the execution of the contract above referred to, Mack Anderson died, and from then until sometime in 1944, J. D. Anderson continued to perform the conditions thereof, and then McDowell began to carry out, in conjunction with J. D. Anderson, the provisions of the contract, and continued to do so until his injury, and death two days later, on January 13, 1945. While apparently there was no written contract between J. D. Anderson and McDowell (nor a written contract between them and Stilley Plywood Company), the record establishes that a partnership agreement between Anderson and McDowell was entered into, and recognized not only by them but also by Stilley Plywood Company, all in full accord with the contract of July 11, 1942, with the two Andersons. There is positive testimony in the record that both J. D. Anderson and McDowell had stated they were partners in these logging operations, and the testimony aside from such statements on their part is convincing that they shared the profits, shared the expenses, hired (and discharged at will) all employees working for them, and paid all of such employees, the Stilley Plywood Company having no knowledge of these employees, nor exercising the slightest control over them. Mr. Anderson and Mr. McDowell were in no wise limited in their logging operations to logging the timber of Stilley Plywood Company, and this is borne out by the fact that occasionally they sold logs to Stilley Plywood Company.

Necessarily, Stilley Plywood Company pointed out to Mr. Anderson, and more especially to Mr. McDowell, who was in charge of the cutting and decking of the logs, the boundary lines of the property on which the logging operations were to be carried on, and advised them of the size of the timber to be cut, etc., but exercised no other control over them. Messrs. Anderson and McDowell were paid by Stilley Plywood Company in accordance with the number of feet of logs delivered, and on no other basis.

The normal basic pay for logs delivered was at the rate of $20 per thousand feet, $12 for the decking of the logs, and $8 for the hauling to the mill. McDowell was in charge of the decking and Anderson of the hauling. While on occasions they were paid together, or at least one of them received the pay for both, ordinarily separate checks were issued to them. Each received duplicate slips showing the delivery of logs. Anderson and...