Nesmith v. Reich Bros.

• Decision Date: 21 June 1943
• Docket Number: 36908.
• Citation: Nesmith v. Reich Bros., 203 La. 928, 14 So.2d 767 (La. 1943)
• Court: Louisiana Supreme Court
• Parties: NESMITH v. REICH BROS. et al.

14 So.2d 767

203 La. 928

NESMITH v. REICH BROS. et al.

No. 36908.

Supreme Court of Louisiana

June 21, 1943

Stafford & Pitts, of Alexandria, for applicants.

Pugh Buatt & Pugh, of Crowley, for respondent.

O'NIELL Chief Justice.

This is a suit for compensation for total permanent disability, under the Employers' Liability Act.ActNo. 20 of 1914.The judge of the district court gave judgment for the plaintiff for the amount sued for, $20 per week during the period of the disability, not exceeding 400 weeks.The court of appeal affirmed the judgment.

The defendant does not deny that the plaintiff is totally and permanently disabled.The defendant pleads that the plaintiff was not an employee of the defendant, in the meaning of the Employers' Liability Act, but was an independent contractor; and, in the alternative, the defendant pleads that, if the court should hold that the plaintiff was an employee, he was not performing services arising out of or incidental to his employment at the time of the accident which caused his disability.

The facts of the case are not disputed.The defendant, a commercial partnership called Reich Brothers, had a contract with an agency of the United States to haul and deliver limestone from a pit, located about seven miles north of the village of Pollock, to Camp Livingston, located about twelve miles South of Pollock.The limestone was being used in the construction of roads about the camp.The hauling was done over the paved highway known as U.S. Highway 165, connecting the city of Monroe, north of Pollock, with the city of Alexandria, south of Camp Livingston.

The defendant did not own or operate any trucks but arranged with a number of truck owners, including the plaintiff, to do the hauling.According to the terms of the contract the plaintiff furnished his own truck and bought his gas and oil from the defendant and allowed the cost to be deducted from his earnings.He was paid 70 cents per cubic yard for the limestone which he hauled from the pit to Camp Livingston.He was obliged by the contract to keep the truck going constantly, 24 hours a day, except perhaps on Sundays, and was allowed to hire a driver or drivers to relieve him.The contract was made on the 2nd day of January and the hauling commenced the next day.The defendant first employed two drivers, named Vandernack and Hebert, and the three worked on eight-hour shifts until the 5th day of January.On that day Hebert quit, and went to driving for a truck owner named Davis, in the same employment.Thereafter the plaintiff and Vandernack drove the plaintiff's truck on twelve-hour shifts.The plaintiff's shift commenced at midnight and Vandernack's at noon.Hebert and a driver named Fletcher drove the Davis truck on twelve-hour shifts.Fletcher's shift commenced at midnight and Hebert's at noon.The plaintiff paid Vandernack 50 cents an hour for his services.According to the system, when the empty trucks arrived at the pit the employees of the defendant took charge of them and directed the lading.The trucks were loaded by means of a dragline, which was operated by four or five employees of the defendant, and which lifted the limestone directly from the pit to the trucks.Each truck load was inspected and leveled and measured by an employee of the defendant; and duplicate tickets, showing the quantity of limestone in the truck, were given to the truck driver; and then he was allowed to go on his journey to Camp Livingston.On his arrival at the camp he delivered the limestone and the two tickets to a so-called spotter, employed by the defendant.The spotter signed one of the tickets and returned it to the driver, and retained the other ticket.The spotter then directed the unloading of the truck.At the end of each day the truck owners turned in their tickets to the defendant and received one ticket showing the quantity of limestone hauled that day.The plaintiff was not employed for any definite length of time nor for the hauling of a definite quantity of limestone.The defendant was at liberty to discharge him or to put an end to the contract at any time that might have suited the defendant.

As a matter of convenience, and in order to keep the trucks traveling constantly, the plaintiff and Vandernack, and Fletcher and Hebert, rented and occupied a rooming house approximately midway between the limestone pit and Camp Livingston,--about three miles below Pollock and therefore about nine miles above Camp Livingston.The lodging house was located about 100 feet from and on the west side of U.S. Highway 165.On the 6th of January, from noon to midnight, the plaintiff and Fletcher were resting at the lodging house while Vandernack drove the plaintiff's truck and Hebert drove the Davis truck.Shortly before midnight the plaintiff and Fletcher arose and went out to the highway to relieve the two other drivers,--Vandernack on the plaintiff's truck and Hebert on the Davis truck.The Davis truck, with Hebert driving northward from Camp Livingston, arrived in front of the lodging house at the same time when the plaintiff and Fletcher came out on the highway, about midnight; and Hebert parked the Davis truck on the east side of the highway, off of the pavement and on the dirt shoulder, out of danger of passing cars.The plaintiff and Fletcher walked across the highway to the Davis truck, on which Fletcher was to relieve Hebert; and the plaintiff asked Hebert, who was yet in the cab of the parked truck, about the whereabouts of the plaintiff's truck, and was informed that the truck probably had left the pit and would arrive soon, loaded and on its way to Camp Livingston.The plaintiff therefore had to await the arrival of his truck, to relieve Vandernack and drive the truck on to Camp Livingston.While the plaintiff and Fletcher were standing by the Davis truck, talking to Hebert in the cab, an automobile came southward down the highway at a high rate of speed, swerved to the left or east side of the highway, struck and injured both the plaintiff and Fletcher, and proceeded on its way.Fletcher was injured only slightly, but the plaintiff suffered the injuries which caused his total and permanent disability.The name or identity of the automobile driver who inflicted the injuries was never discovered.The time at which the automobile struck and injured the plaintiff and Fletcher was a few minutes--perhaps five or ten minutes--after midnight--while the plaintiff was awaiting the arrival of his truck.

The term 'independent contractor' is defined in subsection 8 of Section 3 of Act No. 85 of 1926, amending the original Employers' Liability Act, ActNo. 20 of 1914, thus 'any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished.'

The plaintiff in this case rendered service other than manual labor, by furnishing his truck and the cost of operating it.If he had rendered no other service than the furnishing of his truck and the expense of operating it, he would have been classed as an independent contractor, but in addition to that service he furnished his manual labor, and to that extent was an employee, and not an independent contractor.The definition in the statute does not give a formula for determining whether a person who renders a service consisting partly of manual labor and partly of the furnishing of the implements or equipment for the rendering of the service is an employee or an independent contractor.Perhaps the distinction should be made according to the extent of the manual labor furnished, in comparison with any other service rendered, such as the furnishing of the necessary implements or equipment for the rendering of the service.An employee does not lose his classification as such, and be classed as an independent contractor, merely because he furnishes his own tools or implements or equipment with which he renders the service, even though the recompense is for a specified result, and is not paid as daily or weekly wages, but is computed upon a specified unit of measure of the result accomplished.In such cases, if the furnishing of the implements or equipment with which the work is done forms a considerable proportion of the service for which the recompense is paid to the employee, the rental value of the implements or equipment should be deducted from the total amount of recompense paid to the employee in order to compute the weekly wages on which to base the compensation for his disability,--if there is any doubt that the net amount of his wages is enough to allow him the maximum compensation of $20 per week during the period of disability.On that subject the decision in Alexander v. Latimer, by the Court of Appeal for the Second Circuit, 5 La.App. 41, where the essential facts were exactly as they are in the present case, is directly in point.Alexander, who was allowed compensation for partial disability, was employed by the defendant to haul and deliver gravel, for a stipulated amount per cubic yard, and furnished his own truck and the expense of operating it.The court refused to allow him compensation on the basis of his weekly earnings with the use of his truck, but allowed him compensation at the statutory rate of 65 per cent calculated on the weekly wages paid to truck drivers who were engaged in the same employment but who did not furnish their own trucks.In the present case there is no doubt or dispute that the plaintiff's weekly earnings, excluding any allowance for the use of his truck, were more than enough to allow him the maximum compensation of $20 per week.

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