Murray v. Aaron Mizell Trucking Co.

• Decision Date: 22 May 1985
• Docket Number: No. 0531,0531
• Citation: 334 S.E.2d 128,286 S.C. 351
• Court: South Carolina Court of Appeals
• Parties: Lester Clay MURRAY, Respondent, v. AARON MIZELL TRUCKING COMPANY, sub-contractor to Dean-Dempsey Lumber Company, and Aaron Mizell Trucking Company, sub-contractor for Roy Davis and Southeastern Lumber Manufacturers Fund and/or Palmetto Timber Self-Insured Fund, of whom Roy Davis and Palmetto Timber Self-Insured Fund are Appellants. Appeal of Roy DAVIS and Palmetto Timber Self-Insured Fund. . Heard

Page 128

334 S.E.2d 128

286 S.C. 351

Lester Clay MURRAY, Respondent, v. AARON MIZELL TRUCKING COMPANY, sub-contractor to Dean-Dempsey Lumber Company, and Aaron Mizell Trucking Company, sub-contractor for Roy Davis and Southeastern Lumber Manufacturers Fund and/or Palmetto Timber Self-Insured Fund, of whom Roy Davis and Palmetto Timber Self-Insured Fund are Appellants Appeal of Roy DAVIS and Palmetto Timber Self-Insured Fund.

No. 0531.

Court of Appeals of South Carolina.

Heard May 22, 1985.

Decided Aug. 5, 1985.

Charles E. Carpenter, Jr., and W. Hugh McAngus, of Richardson, Plowden, Grier & Houser, Columbia, for appellants.

Gene W. Dukes, St. George, for respondent.

Ernest J. Nauful, Jr., of Nauful & Ellis, Columbia, for respondent Southeastern Lumber Manufacturers Fund.

CURETON, Judge:

The respondent Lester Clay Murray suffered an accidental injury when logs fell from a truck operated by him. The sole issue presented in this appeal is whether Murray is the statutory employee of appellant Roy Davis or of respondent Dean-Dempsey Lumber Company for purposes of workers' compensation. The single Commissioner, Full Commission and circuit court determined that he was the statutory employee of Roy Davis. Davis and his insurance carrier Palmetto Timber Self-Insured Fund appeal. We affirm.

Dean-Dempsey Lumber Company (Dempsey) is a lumber manufacturing company. It contracted with Davis as a contract logger ¹ to cut and haul timber to its plant. Prior to the injury in question, Dempsey hired Aaron Mizell as a contract hauler. ² Mizell in turn hired Murray to drive his truck. On the date of the accident, Murray was sent to haul timber for Davis whose truck was inoperable. The arrangement between Dempsey and Davis was that when Davis needed help with getting timber to Dempsey's plant, Davis would contact Dempsey and Dempsey would send a hauler, such as Mizell, to transport the timber. The hauler would be compensated by Dempsey's withholding from the monies due Davis a sum to pay the hauler which sum Dempsey turned over to the hauler.

On the date of the injury, Murray drove Mizell's truck to Davis's work site; Davis loaded the truck with timber and Murray proceeded to deliver the timber to Dempsey's plant. Once at the plant, a log fell from the truck and injured Murray. Mizell had no worker's compensation coverage. Murray filed a claim for worker's compensation with Dempsey. Dempsey denied the claim on the ground that Murray was not its employee.

An award under our Workers' Compensation Act will not be made unless an employment relationship existed at the time of the alleged injury for which the claim is made. McLeod v. Piggly Wiggly Carolina Company, 280 S.C. 466, 313 S.E.2d 38 (Ct.App.1984). The determination of the relationship of employer-employee is jurisdictional and review by this Court in such cases is governed by the preponderance of the evidence rule. McLeod v. Piggly Wiggly Carolina Co., supra.

The Commission held that there was an implied agreement between Mizell and Davis that Mizell would haul timber for Davis and that Mizell was the subcontractor of Davis on the day of the injury. The Commission further held that Murray therefore was the statutory employee of Davis under provisions of S.C. Code Ann. Section 42-1-400. We agree. Section 42-1-400 reads:

When any person, in this section and sections 42-1-420 and 42-1-430 referred to as "owner," undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (in this section and sections 42-1-420 to 42-1-450 referred to as "subcontractor") for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any workman employed in the work any compensation under this Title which he would have been liable to pay if that workman had been immediately employed by him.

The term "owner" as used in Section 42-1-400 is synonymous with "principal contractor". Marchbanks v. Duke Power Company, 190 S.C. 336, 2 S.E.2d 825 (1939). This Section provides that any contractor for whom a subcontractor undertakes to perform a part of the contractor's trade, business or occupation, shall be liable to pay to an injured employee of the subcontractor engaged in the principal contractor's work, worker's compensation in the same manner as if the employee had been employed by the principal contractor. Chavis v. E.I. Du Pont De Nemours, 283 F.2d 929 (4th Cir.1960). This is true even though the employee's immediate employer is also an independent contractor. Corollo v. S.S. Kresge Company, 456 F.2d 306 (4th Cir.1972).

As pertains to the question of whether Mizell was, on the date of the injury, a subcontractor of Davis, we find from a preponderance of the evidence that Davis had a contract with Dempsey to cut and haul the timber from a certain tract of land to Dempsey's plant. Dempsey in turn had an arrangement with Mizell whereby he was paid $1.00 per mile to deliver timber to its plant. As a convenience to Davis and at his request, Dempsey arranged with Mizell to haul for Davis. The usual procedure for obtaining a hauler was for Davis to call Dempsey and request one. If Dempsey located a hauler, not otherwise engaged in hauling timber, it directed the hauler, here Mizell, to haul for Davis.

Davis argues first that there is no evidence that Murray was his employee and cites the case of Chavis v. Watkins, 256 S.C. 30, 180 S.E.2d 648 (1971) for the four tests that ordinarily establish the employment relationship. ³ Chavis is inapposite to the facts of this case. Clearly, Murray was the employee of Mizell. The sole issue, as we see it, is whether there was an actual or implied contract between Davis and Mizell that Mizell would haul for Davis. If so, the statute would make Murray the statutory employee of...