Miles v. West Virginia Pulp & Paper Co.

• Decision Date: 27 May 1948
• Docket Number: 16084.
• Citation: 48 S.E.2d 26,212 S.C. 424
• Parties: MILES v. WEST VIRGINIA PULP & PAPER CO.
• Court: South Carolina Supreme Court

48 S.E.2d 26

212 S.C. 424

MILES v. WEST VIRGINIA PULP & PAPER CO.

No. 16084.

Supreme Court of South Carolina

May 27, 1948

C. T. Graydon and Henry H. Edens, both of Columbia for appellant.

Waring & Brockington, of Charleston, and Christie Benet and J B. S. Lyles, both of Columbia, for respondent.

STUKES, Justice.

This is a workmen's compensation case. The controversy revolves around the fact of whether the claimant, who is appellant, was at the time of his injury an employee of the Paper Company which was the defendant, now respondent. Sec 7035-2(b), Code of 1942. Appellant mistakenly contends that the finding of the Industrial Commission that claimant was an employee of the defendant was one of fact which the court cannot reverse if there was substantial supporting evidence. But that rule is inapplicable to jurisdictional facts, and finding of the Commission thereabout are properly reviewable by the courts which will conclude the issue in accord with the preponderance of the evidence. Knight v Shepherd, 191 S.C. 452, 4 S.E.2d 906; Tedars v Savannah River Veneer Co., 202 S.C. 363, 25 S.E.2d 235, 147 A.L.R. 914; McDowell v. Stilley Plywood Co., 210 S.C. 173, 41 S.E.2d 872. It was therefore within the jurisdiction, and hence it was the duty, of the reviewing court to examine the evidence in the consideration of the pertinent exceptions. It is similarly within the function of this court to review the evidence and the factual conclusions of the Commission in order to test its jurisdiction to make the award of compensation which was reversed on appeal to the Court of Common Pleas.

In the absence of pertinent statutory definition, the courts have to have recourse to the common law to determine whether an injured workmen of doubtful status is the employee of the employer against whom he asserts a claim for compensation.

Horovitz, Workmen's Compensation, 1944, p. 236. Comment note, 134 A.L.R. 1029.

In the light of the principles stated we proceed to an examination of the evidence.

Claimant at the time of injury was what is called in the trade a 'pulpwood producer' and was hauling by motor truck wood cut from land and timber in Fairfield County, which was not the property of respondent, for consignment by railway freight to the latter's manufacturing plant at Charleston, about 150 miles distant. His testimony will be summarized. He was hauling pulpwood on June 20, 1944, in the western section of Fairfield County when the truck overturned and crushed his leg. The truck was the property of the Paper Company and leased in writing to him. The instrument was placed in evidence. It provided for a rental to be paid by claimant to the Company of $10 per car of pulpwood hauled by the truck which should be used exclusively for the purpose of hauling pulpwood for shipment to the Company, the latter to pay for repairs but claimant to provide gasoline and oil; that the Company should license the truck and carry insurance against liability to third persons for personal injuries and property damage. There were other provisions which are unimportant in the present inquiry.

Claimant said in testimony that he paid as rental for the use of the truck $20 per week if it was used for three days but when hauling was interrupted by rain, the weekly rental would be $10, which was deducted from the payments to him for the pulpwood. He said that Mr. Hood and Mr. Frick, the latter at that time an employee of the Paper Company, paid for the pulpwood upon which he received a commission of $4.97 per cord for hauling and loading it, which figure he later said was $5.97. That Hood and Frick furnished him with gasoline ration stamps; that he paid the laborers who assisted him in hauling; that sometimes he also cut pulpwood but generally it was cut by farmers; that he would locate pulpwood and present an inventory to Frick who would pay the owners direct by check or give him a check for the purchase price which he would cash and distribute to the sellers; that Mr. Frick would inspect the standing pulpwood to determine whether it was in the stated amounts; that after it was cut he hauled it for shipment to the Paper Company 'through Hood per E. A. Miles' (claimant), in which form the bills of lading were issued; that Hood and Frick gave him shipping instructions and he was paid for each carload through Mr. Hood, but Frick kept the books and issued the checks; that he had been cutting and hauling pulpwood intermittently for twelve or fifteen years, during the last five years principally for shipment to the Paper Company, and thereby earned about $100 a week, after payment by him of his laborers. He said that formerly he shipped a few cars of pulpwood for one W. G. Whitlock, but for the last seven or eight years he had dealt exclusively with Hood who had always paid him for cutting and hauling, and a few carloads of hardwood had been shipped to the Mead Corporation and some to Columbia Paper Company, and under instructions from Hood. He said that he had never been compensated by the Paper Company (respondent) nor had he any agreement with them, but that his dealings were with Hood. The following is an excerpt from claimant's testimony on cross-examination:

'Q. Did you just haul the wood? A. Yes, sir, I would get a piece of timber and locate it and I went thru and cut it. I cut some wood.

'Q. You would hire your men and pay for it had load the truck and put the wood on the car? A. They would buy the timber at so much a standing unit and my men would cut and haul it for so much.

'Q. In other words, you had an agreement with Mr. Hood you would cut and haul for so much a cord? A. Yes, sir.

'Q. When you did that you had the direction and control of the men who did it for you? A. Yes, sir.

'Q. The men working on the truck were your men you paid? A. Yes, sir.

'Q. You would just pay for such wood as you supplied? A. I was paid so much per cord.

'Q. You weren't paid any salary? A. No, sir, just a commission.

'Q. They bought it from Mr. Hood and he paid you for it? A. Yes, sir.'

Frick, who was no longer in the employ of the Paper Company, testified for claimant and said that at the time of the latter's injury he (the witness) was a salaried employee of the Paper Company, hired by a Mr. Haines who was Field Manager, and the witness was instructed to help Hood look after the trucks, to help cruise timber and check wood which was shipped to the Paper Company. He said that Hood bought some tracts of timber and mortgaged them to the Paper Company, and that Hood shipped some to Union Bag Company in Savannah and to other concerns from time to time; that he could sell to any one he wished; that at the time of claimant's injury, the latter was hauling wood from farms, for which service he was paid by Hood; that the Paper Company deducted from the proceeds of shipments certain amounts for the credit of Hood to the payment of his mortgage to the Company, if any; that the witness assisted Hood in any way that he could and protected the interest of the Company with respect to the latter's loans to Hood; that claimant was not an employee of the Paper Company but operated a truck leased from it; that usually a mortgage was not given by Hood on pulpwood cut in the woods (by others) but Hood paid for it and the Paper Company reimbursed him; that occasionally there was a railway embargo against shipments to the Paper Company and it was agreed that on such occasions Hood might ship pulpwood to other concerns so as to keep the producers, such as claimant, in business; that Hood's compensation consisted only of his commission of ninety-seven cents per unit of pulpwood; the witness kept Hood's books; the 'men in the field' (producers, such as claimant) got the benefit of any overage of pulpwood in Hood's purchases of tracts of timber, except that when sawmill timber was included, Hood otherwise disposed of it to his profit and similarly Hood's purchases sometimes included land which he would thereby obtain and later sell, and in one such case the producer bought the land from Hood; when a producer bought the timber and did the cutting on his own account, he would get the whole proceeds of the sales of the pulpwood except for Hood's commission; that all of the transactions amounted to sales of pulpwood by Hood to the Paper Company. In some of the transactions the producer obtained the benefit of surplus in the wood over the estimate and in such a case when the purchase mortgage was paid from the proceeds of the sale of timber and pulpwood the producer would benefit from such a good buy, but recently timber prices have been so high that such bargains are no longer available. Different contracts were made from time to time, relating to different tracts of land and wood, between Hood and the producers. Usually Hood gave a producer the profits derived from surplus wood on a tract which was discovered by the producer, unless there was some other agreement. Thus Hood sometimes received the profit resulting from a surplus of wood, and sometimes the producer did. Claimant operated two trucks and his estimate of $100 per week as his earnings is approximately correct. Mr. Hood advanced money to the producers on the bills of lading each week when settlements were made by the Paper Company for its purchases.

Through identification by this witness, Frick, there was introduced in evidence 'Statement of John I. Hood's advances made on wood cut in woods and stored wood, as of January 28, 1944.' The fourth item on this statement is of 175 units of wood (cut in the woods) of E. A. Miles (claimant), one of several producers, upon which $350 was advanced. A footnote to the effect that it was on 'conservative estimate by Gene Frick.'

James H. Graham testified for respondent that he is its ...