Tuscaloosa Veneer Co. v. Martin

• Decision Date: 07 January 1937
• Docket Number: 6 Div. 10
• Citation: 172 So. 608,233 Ala. 567
• Parties: TUSCALOOSA VENEER CO. et al. v. MARTIN
• Court: Alabama Supreme Court

172 So. 608

233 Ala. 567

TUSCALOOSA VENEER CO. et al. v. MARTIN

6 Div. 10

Supreme Court of Alabama

January 7, 1937

Rehearing Denied March 4, 1937

Certiorari to Circuit Court, Tuscaloosa County; Henry B. Foster, Judge.

Proceeding under Workmen's Compensation Act by C.J. Martin against the Tuscaloosa Veneer Company, a partnership, and the individuals composing same. Judgment awarding compensation and the employers bring certiorari.

Writ denied; judgment affirmed.

London & Yancey and B.F. Smith, both of Birmingham, for appellants.

Livingston & Livingston, of Tuscaloosa, for appellee.

KNIGHT Justice.

C.J Martin filed his complaint in the circuit court of Tuscaloosa county against the Tuscaloosa Veneer Company and others, to recover compensation, under the Workmen's Compensation Law of Alabama (Code 1923, § 7534 et seq., as amended), for an accidental injury, which he alleged he received while in the employment of the said defendants, and which injury he alleged he received by reason of an accident arising out of and in the course of his employment.

Upon the trial of the cause it was agreed in open court by and between counsel for the parties that the only question involved in the case was, whether or not the plaintiff was an employee of the defendants, or an independent contractor, at the time of the alleged injury, and all other questions were eliminated, except the amount of compensation the plaintiff was entitled to, if any. We may here state that no argument is submitted here to show that the amount awarded was excessive, but the entire brief of counsel is directed to the supposed error of the court in holding that the plaintiff, under the evidence, was an employee within the meaning of the Workmen's Compensation Law of Alabama, and not an independent contractor.

The court found, upon the evidence submitted, that the plaintiff, on the day he received his injuries, was employed by, and working for the defendants, and that his injuries were caused by an accident arising out of, and in the course of his employment, and that he was entitled to compensation, as provided in and by the Alabama Workmen's Compensation Act. That the relation created by the contract between the plaintiff and defendants was that of employer and employee, and not that of an independent contractor. The finding of fact in this regard is stated by the court in the following language: "The employer's answer sets up as a defense that the plaintiff was an independent contractor and was not an employee of the defendants, however, the court is of the opinion that the plaintiff fully established his employment by the defendants, the evidence showing that the defendant, O.E. Howell, carried plaintiff to the tract of timber, showed him where to begin cutting, what timber to cut first, where to cut next and directed plaintiff as to which and what timber he should cut and the order in which it was to be cut, and that he was an employee under the Workmen's Compensation Act and not an independent contractor at the time of said injury, and that the defendants did not establish its defense, but that plaintiff is entitled to compensation and expenses as an employee herein decreed him."

It is here earnestly insisted by petitioners that the court erred in holding that the said Martin, under the evidence, was an employee and not an independent contractor, and that the court's finding, in this regard, has no support in the evidence.

In order that this court may determine for itself whether or not there was any evidence to support the court's findings, the petitioners along with the petition have presented a bill of exceptions, which purports to set out all the evidence in the case.

Other than the agreement of counsel noted above, and a check for $6.42 drawn by defendants to the order of plaintiff, the only testimony in the case was given by Martin, the employee. The defendants offered no evidence.

The testimony of the plaintiff tended to show that he applied to O.C. Howell, a member of the partnership of the Tuscaloosa Veneer Company, for a job of cutting timber on or about May 1, 1935; that Howell told him that he had nothing for him to do at that time, but said to plaintiff to come again to see him when he was in town. After some little time, plaintiff went back to Howell, and the latter then stated to plaintiff, "I think we can get together, I think I have some timber for you to cut," and when asked by plaintiff where the timber was, Howell told him it was at Beavers pond.

The bill of exceptions then recites: "He (Howell) told me whose timber it was. He said 'have you got tools,' and I said everything. I said I had everything but a saw. With reference to the saw he said I will give you an order to Allen & Jemison and you can get the saw and carry it with you, I told him I had no way to go except on the train, and it was not handy to carry the saw. I don't know when this was. It was a week before I was hurt. Mr. Howell said 'When I get ready for you to go to work, I will bring the saw and carry you down there.' The next I saw him was on Tuesday, when he came and got me and said 'I reckon we will go down there' and I got in the car, and he showed me the line, and he came back, and he said cut this so we can pull it up the hill and when it gets dry enough to go under the bank, we can go in there with the trucks. As to whether he told me where to go when I finished cutting that part, he said cut back farther when it gets dry. He brought me a saw and wedge and turned them over to me. In reference to what conversation took place with reference to the implements he brought and turned over to me and told me to use, he told me, 'you will have to get a saw,' and he said 'I will hold out so much per thousand, and I will take it out.' He would pay me so much per thousand feet, that is seventy-five cents per thousand. As to what was said between Mr. Howell and me with reference to cutting the timber, he said 'If I get logs from other places, we may cut thirty or sixty days; but if I get some others, we may go away from here.' He said he was cutting this timber because he was up with his logs. They were bringing the logs that I cut to the veneer plant here; the plant Mr. Howell operates down here. I started to work on Tuesday and the accident occurred on Friday--the Friday after I started to work on Tuesday."

The testimony, without dispute, showed that plaintiff went to work on Tuesday, cut two trees...