Mullins & Parker v. Rucker

• Decision Date: 12 October 1959
• Docket Number: No. 41222,41222
• Citation: 114 So.2d 761,237 Miss. 330
• Court: Mississippi Supreme Court
• Parties: MULLINS & PARKER and United States Fidelity & Guaranty Company v. John E. RUCKER.

Page 761

114 So.2d 761

237 Miss. 330

MULLINS & PARKER and United States Fidelity & Guaranty Company v. John E. RUCKER.

No. 41222.

Supreme Court of Mississippi.

Oct. 12, 1959.

Laub, Adams, Forman & Truly, Natchez, for appellant.

Robert L. Netterville, Natchez, C. F. Cowart, Meadville, for appellees.

LEE, Justice.

John E. Rucker, on June 17, 1954, while cutting pulpwood on the land of J. W. Sullivan in Franklin County for delivery to Mullins & Parker, partnership pulpwood dealers at Natchez, Mississippi, was struck by a falling tree with the result that both of his legs were badly broken. The injured man was sent immediately to a hospital; and the next day, Mullins & Parker made out and sent to both its insurer, United States Fidelity & Guaranty Company, and the Workmen's Compensation Commission, the employer's first report of industrial injury, in which they designated themselves as employer and Rucker as employee. Thereafter on July 2, 1954, Rucker, Mullins and Parker, and their insurer, United States Fidelity & Guaranty Company, voluntarily signed an agreement for the payment of compensation at the rate of $25 per week during the continuance of the disability. This agreement was filed with and approved by the Commission. From June 18, 1954, to September 19, 1957, that is, for 170 weeks, total payments of compensation aggregated $4,250 and medical expenses $1,849.02. During that period, by the filing of numerous papers with the Commission and the acceptance of many reports from doctors, Mullins and Parker and their insurer recognized themselves as the employer of Rucker.

On September 5, 1957, the carrier filed with the Commission notice that it had terminated temporary total disability payments as of August 23, 1957, because maximum recovery had been reached. Thereupon the claimant filed his petition for a hearing and determination of his permanent disability, whether total or partial.

At the conclusion of the hearing, the attorney-referee was of the opinion that the claimant reached maximum recovery on August 24, 1957, and that the payment of $25 per week for 166 weeks was for temporary total disability; and that the claimant was, at that time, on May 29, 1958, totally and permanently disabled. Consequently for such permanent and total disability, he awarded benefits at the rate of $25 per week from August 24, 1957, for a period of 450 weeks or $8,600, whichever should be the lesser in amount, crediting $100 as previously paid thereon.

On appeal, the Commission held that the claimant, at all times since June 17, 1954 had been totally and permanently disabled. For that reason, it modified the award of the attorney-referee so as to require weekly payments of $25 from the date of the injury for a period of 450 weeks, or until the amount of $8,600 has been paid, less the amount of $4,200 theretofore paid. On both direct and cross appeals, the circuit court affirmed; and the case has been brought here on direct appeal by the employer and its insurer and on cross-appeal by the claimant.

Notwithstanding Mullins and Parker and their insurer promptly, after the accident, in recognition of the existence of the employer-employee relationship between them, agreed to pay compensation, and thereafter did so for 170 weeks, and notwithstanding many statements and acknowledgments in writing that such relationship subsisted, they now maintain on this appeal that such relationship did not exist, but that, on the contrary, it was one of vendor and vendee. To that end, evidence was introduced, which, they say, brings the case within the rule announced in Nelson v. Slay, 216 Miss. 640, 63 So.2d 46, and other cases of like tenor and effect.

Lindsey Adams and the claimant, two Negroes, were cutting pulpwood on the Sullivan land. Adams, as a witness for the appellants, on cross-examination, testified that Mullins, in advance, determined that the Sullivan timber should be purchased, that he agreed to pay for the stumpage, and that he did so; that, when the timber was severed, it became partnership property; that Mullins, on Saturdays, gave orders for the following week, directing how many loads of wood should be hauled, what kind of timber should be cut, whether pine or gum, and how to cut the same; that the timber could not have been sold to anyone other than Mullins; and that Mullins had complete control...