Rashall v. Fallin & Savage Timber Co.

• Decision Date: 30 January 1961
• Docket Number: No. 170,170
• Citation: 127 So.2d 238
• Court: Court of Appeal of Louisiana — District of US
• Parties: L. J. RASHALL, Plaintiff and Appellant, v. FALLIN & SAVAGE TIMBER COMPANY, Inc., Defendant and Appellee.

Page 238

127 So.2d 238

L. J. RASHALL, Plaintiff and Appellant, v. FALLIN & SAVAGE TIMBER COMPANY, Inc., Defendant and Appellee.

No. 170.

Court of Appeal of Louisiana, Third Circuit.

Jan. 30, 1961.

Jess L. Funderburk, Jr., Leesville, for plaintiff-appellant.

George B. Holstead, Ruston, for defendant-appellee.

Before HOOD, SAVOY, and CULPEPPER, JJ.

CULPEPPER, Judge.

This is a suit for workmen's compensation benefits. Plaintiff alleges that he injured his back while loading a piece of pulpwood on his truck during the course and scope of his employment by the defendant. In its answer the defendant denied the employer-employee relationship and alleged a buyer and seller relationship existed between plaintiff and defendant. After trial on the merits the lower court held that plaintiff was an independent contractor and denied recovery. From this judgment plaintiff has appealed.

The facts are that the defendant, Fallin & Savage Timber Company, Inc., is in the business of procuring pulpwood for sale to its various customers from whom they obtain orders. The defendant operated yards at Simmsboro, Colfax and Tioga (referred to in the record as the Beauregard Yard). International Paper Company had contracted with T. L. James Company, Inc. to purchase pulpwood from lands belonging to the latter and located in Rapides Parish, Louisiana. T. L. James Company, Inc. in turn contracted with the defendant to cut and haul the pulpwood of the type and size specified in their contract. In order to cut and remove the timber from this land, the defendant made an agreement with plaintiff and various other pulpwood haulers who did the actual work of cutting and hauling the pulpwood to the yards of the defendant at Colfax or Tioga. Plaintiff, as well as the other haulers, furnished their own trucks, power saws and other equipment, hired and paid whatever helpers they needed, paid all of their expenses and delivered the wood to yards of the defendant at a unit price of $10 per cord for pine and $9.50 for gum. Defendant paid plaintiff and the other haulers on Friday of each week.

In order to carry out its agreement with T. L. James Company to cut only certain types and sizes of wood from certain designated areas and to cut these areas clean the defendant employed Mr. Tommy Lee as a woods-foreman. Mr. Lee stayed in the woods with the plaintiff and other haulers and instructed them as to what timber to cut, when to cut it and to which yard to haul it. Also at times Mr. Lee required that the plaintiff and others go back over certain tracts to clean up certain timber which had been left by others. The general procedure was that Mr. Lee would assign to each man and his crew a certain strip of land on which they were to cut certain types of wood at certain times.

The evidence shows that plaintiff had been working under Tommy Lee cutting and hauling pulpwood for approximately eight or nine months previous to his injury. On the date of the accident, August 6, 1959, plaintiff and his two helpers were loading pulpwood on plaintiff's truck, when he hurt his back. Plaintiff's testimony regarding the accident is corroborated in detail by both of his helpers who stated that they saw plaintiff when he was hurt, heard him complain immediately thereafter and know that he has not worked since that day except for one morning approximately ten days later when on the advice of Dr. Sewell he went back and tried to work again but could not.

Under the above facts the trial judge was certainly correct in holding that there was no buyer and seller relationship between plaintiff and defendant because plaintiff did not own the timber, it belonged to T. L. James & Company. The lower court found that plaintiff was an independent contractor and denied recovery. Apparently counsel did not call to the attention of the lower court the fact that LSA-R.S. 23:1021(6) was amended by Act 179 of 1948 so as to provide that an independent contractor is covered by the workmen's compensation act if a substantial part of his work time is spent in manual labor in carrying out the terms of the contract.

We do not find it necessary to decide whether Rashall was or was not an employee of the defendant by reason of the control exercised through defendant's employee, Mr. Tommy Lee, because even if plaintiff was only an independent contractor he is clearly included within the protective provisions of LSA-R.S. 23:1021(6) as amended by Act 179 of 1948 which reads as follows:

"Independent Contractor' means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as 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, and are expressly excluded from the provisions of this Chapter Unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.' (The italicized portion was added by Act 179 of 1948.)

The only reported case interpreting the above statutory provision added by Act 179 of 1948 is Welch v. Newport Industries, 86 So.2d 704, 706, decided by the First Circuit Court of Appeal in 1956 and in which writ of certiorari to the Supreme Court was denied. In the Welch case plaintiff was a logging contractor who grossed $10,000 to $12,000 a month, employed approximately thirty men and used his own trucks, tractors and other equipment. The court found that Welch was an independent contractor but that he drove a pick-up truck daily to transport supplies, built a supply shed with his own hands, occasionally helped to load railroad cars, repaired and maintained machinery, wielded and axe and shovel, used a wheelbarrow and drove a tractor. He was injured while he and a helper were attempting to free a tractor which was struck.

In interpreting the words 'substantial part' as used in the above-quoted statute, the court held as follows:

'While in some legal senses 'substantial' indeed has the signification of the larger part, such as in 'substantial compliance', legally the words 'substantial part' also are used not as a term of mathematical precision, but also so as to mean the converse of insubstantial or immaterial.

'As was stated in a federal case interpreting the words 'substantial part' in connection with the interpretation of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., a remedial statute with similar legislative intention and judicial interpretation.

"'A substantial part' is not a phrase of mathematical precision. For the purposes under consideration, I think it is satisfied by less than 50 per cent. I do not think that in the context in which it is used by the Supreme Court, 'substantial' means the same as when it is used in the phrase, 'substantial performance of a contract.' I construe the language to mean the converse of insubstantial or immaterial. See, Schainman v. Dean, 9 Cir., 1928, 24 F.2d 475, 476. By such a standard, I find that a substantial part of the plaintiffs' activities was in the production of goods for commerce', Berry v. 34 Irving Place Corporation, D.C., 52 F.Supp. 875, at page 879.'

In the Welch case supra, the court also interpreted 'manual labor' as follows:

'Similarly, 'supervisory duties' and 'manual duties' are not necessarily contradictory terms for purposes of determining compensation coverage. 'Supervisory duties' may...