Stubbs v. Green Bros. Gravel Co.

• Court: Mississippi Supreme Court
• Writing for the Court: ETHRIDGE
• Citation: Stubbs v. Green Bros. Gravel Co., 206 So.2d 323 (Miss. 1968)
• Decision Date: 29 January 1968
• Docket Number: No. 44719,44719
• Parties: J. B. STUBBS v. GREEN BROTHERS GRAVEL COMPANY, Inc., et al.

Page 323

206 So.2d 323

J. B. STUBBS v. GREEN BROTHERS GRAVEL COMPANY, Inc., et al.

No. 44719.

Supreme Court of Mississippi.

Jan. 29, 1968.

Arrington & Arrington, Hazlehurst, Kervin & McIntosh, Collins, for appellant.

Hanley, Jones & Henley, Hazlehurst, for appellees.

ETHRIDGE, Chief Justice:

J. B. Stubbs, appellant, brought this action in the Circuit Court of Copiah County against Green Brothers Gravel Company, Inc. (hereinafter called Green) and its truck driver Jamie Brown, appellees. The declaration charged that plaintiff, employed by D. J. McDonald to haul gravel, was injured when his vehicle was struck by a truck driven by Brown and owned by Green; that Brown was not keeping a proper lookout, and did not have his vehicle under control or in proper repair; and that these negligent acts were contributing proximate causes of plaintiff's injuries, for which he sought damages in this common law action. Defendants denied the charges of negligence, and specially pleaded that Green had secured payment of workmen's compensation insurance to cover its employees, plaintiff was an employee of Green, his injuries occurred in the scope of his employment, and that the Workmen's Compensation Act was plaintiff's exclusive remedy. Miss.Code 1942 Ann. § 6998-05 (1952). The circuit court sustained this plea and dismissed the suit.

Green owned two sand and gravel pits, and maintained equipment at the pit sites for mining, processing, and loading these products. It sold sand and gravel, having it delivered to customers within an area of about fifty miles. Individual truck owners, engaged to be the hauling, were paid on a tonnage basis. McDonald, who owned seven trucks, had been hauling sand and gravel for Green since about 1964 under an oral contract terminable by either party at will. Other truck owners also hauled for Green under similar agreements. No specific amount of gravel was to be hauled by any one trucker. With one exception, McDonald had been hauling exclusively for Green. Green determined the time, place and method of loading, as well as the destination and system of furnishing evidence of delivery. The truckers were given tickets which Green's customers were required to sign. Based on those tickets, periodic payments were made to McDonald, who in turn paid his truck drivers. McDonald determined the assignments of his trucks in hauling to Green's customers. Stubbs was one of the truck drivers hired by McDonald. McDonald deducted social security and income tax from his truck drivers' wages and furnished them with his own trucks, gasoline and maintenance. The hauling of the sand and gravel from Green's plant to its customers was an integral part of the business operation. Although McDonald carried workmen's compensation insurance covering his truck drivers, Green also carried workmen's compensation insurance covering the truck drivers and its insurance premium was based in part on the wages paid these drivers.

The instant case is controlled by Brown v. E. L. Bruce Company, 253 Miss. 1, 175 So.2d 151 (1965); Boyd v. Crosby Lumber and Manufacturing Company, 250 Miss 433, 166 So.2d 106 (1964); Bush v. Dependents of Byrd, 234 Miss. 782, 108 So.2d 211 (1959), and Wade v. Traxler Gravel...