Wade v. Traxler Gravel Co.

• Decision Date: 27 January 1958
• Docket Number: No. 40600,40600
• Citation: 232 Miss. 592,100 So.2d 103
• Parties: William WADE v. TRAXLER GRAVEL COMPANY and United States Fidelity & Guaranty Company.
• Court: Mississippi Supreme Court

Page 103

100 So.2d 103

232 Miss. 592

William WADE v. TRAXLER GRAVEL COMPANY and United States Fidelity & Guaranty Company.

No. 40600.

Supreme Court of Mississippi.

Jan. 27, 1958.

W. M. Broome, Crystal Springs, for appellant.

Butler, Snow, O'Mara, Stevens & Cannada, Jackson, for appellees.

KYLE, Justice.

This case is before us on appeal by William (Bill) Wade from a judgment of the Circuit Court of Copiah County affirming an order of the Mississippi Workmen's Compensation Commission approving the findings of the attorney-referee and dismissing the claim of the appellant against Traxler Gravel Company and its insurance carrier for compensation under the Mississippi Workmen's Compensation Act, Code 1942, Sec. 6998-01 et seq.

The record shows that Wade was injured on April 21, 1955, while hauling gravel from the Lingle Pit in Copiah County. The injury occurred while Wade was attempting to make an adjustment or repair on his truck and the dump body dropped unexpectedly, striking Wade and inflicting a crushing injury to his chest. He was sent to the Baptist Hospital at Jackson immediately for medical treatment, and was totally disabled until June 9, 1955, at which time the doctor permitted him to return to light duty work. On October 11, 1955, the doctor discharged him as being able to return to full duty, with an estimated ten or fifteen per cent permanent disability. The doctor stated that his opinion as to the extent of Wade's disability was based on his finding that the right side of Wade's chest was smaller than the left, and the results of an X-ray examination made on November 25, 1955. He stated that the right muscle of the diaphragm 'is elevated to the seventh rib at the base of the lung,' and 'a crescent shaped density is noted extending outside from the lower region'; that 'both lungs have a stringy appearance.' Wade testified that since the accident he had suffered some shortness of breath on exertion which made it necessary for him to take frequent rests.

The attorney-referee found that the Traxler Gravel Company was engaged in the business of mining and selling gravel, and that it owned or leased several gravel pits in the Crystal Springs area, and delivered gravel to its customers both by rail and by truck; that all of the equipment used in excavating, washing, stock-piling and loading gravel at the pit was owned by the Traxler Gravel Company; that approximately sixty per cent of the gravel sold by the company was shipped by rail, and the remaining forty per cent was delivered by trucks owned by others than the company. The attorney-referee found that the claimant Wade owned and was operating one of these trucks at the time of his injury on April 21, 1955; that the injury was accidental, and that Wade was temporarily and totally disabled from that date until June 9, 1955; and that he was temporarily and partially disabled from June 9, 1955, to October 11, 1955. The attorney-referee found that Wade had attained maximum medical recovery, and that he had a ten per cent permanent partial disability to the body as a whole as a result of the accidental injury. The attorney-referee found, however, that Wade was an independent contractor and not an employee of the Traxler Gravel Company at the time of the accident; and the attorney-referee entered an order dismissing Wade's claim for compensation.

Upon review the full commission affirmed the order of the attorney-referee; and the circuit court, upon appeal, affirmed the order of the commission

The only question presented for our decision on this appeal is whether or not the attorney-referee and the commission erred in their finding that the appellant was an independent contractor and not an employee of the Traxler Gravel Company, and whether the circuit court erred in affirming the order of the commission dismissing the appellant's claim.

Wade testified that he had been hauling gravel for Traxler about a year prior to April 21, 1955, and that he was hauling gravel from the Lingle Pit at the time that he was injured. Wade stated that under the company's plan of operation the haulers could enter the pit to have their trucks loaded only between the hours of 2:00 o'clock in the morning and 5:00 o'clock in the afternoon. Loading operations in the pit were shut down from 5:00 P.M. until 2:00 A.M. He stated that he was required to get a ticket at the office before he went into the pit, and if he did not get a ticket he could not haul. The truck that he owned would haul six yards of gravel. He had no regular time to report for work, and if he wanted to take a day off he could do so. Wade stated that the company had seven or eight men who worked in the pit. The company also had a tractor, a drag line and other equipment in or about the pit, for stripping the dirt off of the gravel deposits and loading the gravel. The gravel haulers had to line up, and after the gravel was loaded on the trucks the drivers hauled the gravel to the point of destination and delivered it to the purchasers. When it was delivered the purchaser signed a ticket or receipt, which the driver brought back to the office. The company's representative told the driver where to carry the gravel. The company had a map and would show the driver which way to go. The number of yards of gravel that the truck could carry was marked on the body of the truck. Wade stated that he had no written contract of hire. He could quit at any time he got ready. The company could turn him off at any time. He did not agree to haul any certain amount of gravel. The company owned the machinery and equipment at the pit; Wade and the finance company owned the truck that he was driving; and Wade paid for his own gasoline and oil, and his own repair bills. There were about 75 trucks which were being operated at the time Wade was injured. They all operated under the same standard procedure. Wade owned one truck at the time he was injured. He was paid by the yard for hauling the gravel every two weeks. He always obeyed the instructions issued by Traxler.

Russell Slay testified that he was working for the Traxler Gravel Company on April 21, 1955, and quit in June 1955. He worked in the office. He wrote orders and tickets for delivery, told the truck drivers where to carry the gravel and what type of gravel to load. He showed the truck drivers a map and showed them the best route to take. Sometimes he had to carry an order over to the pit, if it was a rush order; and he would give it to Traxler's foreman, or the man on the drag line; and the foreman would then tell the truck driver what type of gravel to load and where to carry it. Traxler usually tried to keep certain crews that would haul like Traxler wanted them to do. If they had a man who would go off and haul somewhere else, 'they just would not fool with him--they would not keep him.' They would not keep a man who did not show up regularly for work. On cross-examination Slay stated that there were some truckers who owned as many as four trucks and hired their own drivers. Most of the truckers bought their gasoline and oil from Traxler and Traxler held it out of their earnings at the end of the two-weeks period.

George Traxler testified that he was an official of the Traxler Gravel Company, which was a Mississippi Corporation; that he had been engaged in the gravel business twenty years; and that he had personally supervised the operation of the Lingle Pit since his brother's death on January 25, 1955. The business of the company was mining gravel and sending it to users. The company shipped by rail and by truck, about sixty per cent by rail, and forty per cent by truck in a year's run. The trucks that were used in delivering gravel to the consumers were owned by private individuals. There were about eight men who worked in the pit. The truckers were not carried on the regular company payroll. They were carried on the truckers' payroll, and were paid every two weeks by check. No deductions were made from their payroll. The truckers such as Wade were paid by the yard. Some of the truckers owned more than one truck. Traxler was asked whether the company had any control over the hiring and firing of these hired truck operators. His answer was, 'Yes I hire them, and when we get through with them we lay them off and tell them when we need them we will call them.' The truckers were hired according to the needs of the business. The company had no control over whom the truck owners hired to operate its trucks. The company-owned trucks were not used to haul gravel on the highway. They were used for stockpiling gravel and moving dirt, and the company owned one lowboy that hauled heavy equipment. Traxler was asked whether the company directed over what route the trucks should make their deliveries. His answer was, 'The only thing we do like that is, say, tell the guy where to load, tell him what machine to get under, because this machine could be loading one thing and that one another. We have 13 machines up there. * * * We tell him where the destination is, it is up to him. We can only tell him, he can take whatever streets he wants to take to get there. We have maps and we will assist them if they want it--we will show them where it goes.' Traxler stated that the trucker had no regular hours, he could come and go as he pleased. As to the method of doing business, Traxler stated that the company had ticket books which contained three copies of each ticket. The driver's name was written on the ticket. The man who issued the tickets would tell the trucker where the gravel was to be delivered. The trucker would then carry the gravel to the point of destination, and the man at that end of the line would initial the ticket. The trucker would bring the ticket back, and the company would give him a receipt for it and a record of the hauling would then be entered on the payroll in the office.

On cross-examination Traxler stated that the truck drivers had no kind...