Sones v. Southern Lumber Co.

• Decision Date: 13 October 1952
• Docket Number: No. 38486,38486
• Parties: SONES v. SOUTHERN LUMBER CO. et al.
• Court: Mississippi Supreme Court

Page 582

60 So.2d 582

215 Miss. 148

SONES v. SOUTHERN LUMBER CO. et al.

No. 38486.

Supreme Court of Mississippi.

Oct. 13, 1952.

Morse & Morse, Poplarville, Grayson B. Keaton, Picayune, for appellant.

Rae Bryant, Gulfport, for appellees.

HALL, Justice.

Appellant suffered the loss of vision in his left eye while manipulating a binder in tightening a chain around a truck load of logs. He filed a claim under the Workmen's Compensation Act for this injury against Alvin Gipson, doing business under the name of Southern Lumber Company, and his insurance carrier, Bituminous Casualty Corporation. Upon a hearing of the matter the attorney-referee denied a recovery on the ground that appellant was not an employee of Gipson; this action was sustained by the Commission and on appeal to the circuit court an order was entered affirming the same from which order this appeal is prosecuted.

In cases where the finding of the Commission on a disputed question of fact is supported by substantial evidence we are not authorized to reverse its judgment. In this case, however, there is no dispute as to the facts and the matter for decision is one of law. Gipson owned and operated a sawmill in Pearl River County and, having in his employment more than eight persons, qualified under the Workmen's Compensation Act, Code 1942, Sec. 6998-01 et seq. About half of his supply of logs came from timber which he owned and the remainder came from purchases of logs from outside parties who brought them to the mill for sale. Gipson had one Walter Johnson in his employment as manager of a farm owned by Gipson and, in addition to the farm duties, Johnson was for some time employed as woods foreman in cutting and hauling logs to the mill from timber owned by Gipson. In doing this work Gipson furnished a truck for the hauling and also furnished a machine known as a 'logger's dream' which was used in skidding the logs from the forest and in loading them upon the truck. He also furnished the other equipment used in the logging operations. A few months prior to appellant's injury Gipson entered into an oral contract with Johnson whereby Gipson furnished the above mentioned equipment to Johnson, agreed to keep the same in repair, agreed to furnish all the gasoline and oil necessary for the operation thereof, and agreed to pay Johnson $13 per thousand feet for logs delivered at the mill. No notice of this change was posted at the mill or in any other manner given to the employees. The logs were to be cut from timber owned by Gipson, and Johnson was to employ and pay the men who assisted in cutting and hauling the logs. Johnson himself worked along with these men. Gipson testified that this oral contract did not cover any specific tract or amount of timber, did not expire at any fixed time, and that either he or Johnson had the right to terminate the agreement at any time without notice. Gipson went upon the land from which the timber was to be cut and pointed out the lines. He also directed that the cutting be confined to those trees which measured nine inches and over in diameter at a point ten inches above the ground. All the logs therefrom were to be delivered to his mill. The question presented is whether under these facts appellant was an employee of Gipson or the employee of an independent contractor so as to relieve Gipson and his insurance carrier of liability for the injury.

Finding the answer to the question 'Whose servant is this?' is often fraught with difficulty. The tests in arriving at the answer were fully laid down by this Court in the case of Kisner v. Jackson, 159 Miss. 424, 132 So. 90, 91, from which we quote:

'There have been many attempts to define precisely what is meant by the term 'independent contractor'; but the variations in the wording of these attempts have resulted only in establishing the proposition that it is not possible within the limitations of language to lay down a concise definition that will furnish any universal formula, covering all cases. At last, and in any given case, it gets back to the original proposition whether in fact the contractor was actually independent. In our own more recent cases, it has been said that the important tests are whether the alleged 'independent contractor is one who renders service in the course of an occupation representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished,' and that he is not a master who has no 'right to control the servant; and who is interested in the ultimate result of the work alone as a whole, but not in the details of the performance;' and that 'the main element required to constitute the relationship of master and servant is that the servant be subject to the control of the master in carrying on the business at the time of the injury.' Hutchinson-Moore Lumber Co. v. Pittman, 154 Miss. 1, 122 So. 191, 193; Caver v. Eggerton, 157 Miss. 88, 127 So. 727. But since these statements or definitions refer to the 'will of the employer' and to the 'control' by the master, we are returned again to the original proposition whether in a given case the alleged independent contractor is in fact independent, free of the will of his employer--actually and substantially free from his control.

'There are several tests to be applied, the weight of each, and whether much or little, rising and falling in the scale as it may or may not be counterbalanced by one or more of the remaining tests, present in the particular case in hand. For this reason these tests cannot be stated in any precise order of importance, but they are as follows: Whether the principal master has the power to terminate the contract at will; whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; whether he furnishes the means and appliances for the work; whether he has control of the premises; whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; whether he has the right to prescribe and furnish the details of the kind and character of work to be done; whether he has the right to supervise and inspect the work during the course of the employment; whether he has the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the subemployees and to fix their compensation; and whether he is obliged to pay the wages of said employees. These are the tests, as we think, and any other, if differently stated, may be brought within one of those above briefly set out. 14 R.C.L., pp. 67-76; 31 C.J. pp. 473-475; 39 C.J. pp. 1316-1323.'

The Kisner case was followed in Natchez Coca Cola Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677; Benjamin v. Davidson-Gulfport...