Williams v. Tennessee River Pulp and Paper Co.

• Decision Date: 30 September 1983
• Citation: 442 So.2d 20
• Parties: Levon WILLIAMS, Administrator of the Estate of Rayford Williams, deceased, et al. v. TENNESSEE RIVER PULP AND PAPER COMPANY, et al. 82-632.
• Court: Alabama Supreme Court

Page 20

442 So.2d 20

Levon WILLIAMS, Administrator of the Estate of Rayford Williams, deceased, et al. v. TENNESSEE RIVER PULP AND PAPER COMPANY, et al.

82-632.

Supreme Court of Alabama.

Sept. 30, 1983.

Rehearing Denied Dec. 9, 1983.

James C. King of Wilson & King and Pat Nelson of O'Rear, Robinson & Nelson, Jasper, for appellants.

Carol A. Smith of Starnes & Atchison, Birmingham, for appellees.

TORBERT, Chief Justice.

Appellants Levon Williams, James Stelman, and Frances Stelman initiated this action (as personal representatives of the Estates of Rayford Williams and Kathleen Marie Williams) against appellee Tennessee River Pulp and Paper Company ("Tennessee Paper"), claiming damages for the alleged wrongful death of Rayford and Kathleen Williams. Appellants alleged that Tennessee Paper was vicariously liable for these deaths. Appellants appeal from the trial court's order granting Tennessee Paper's motion for summary judgment. We affirm.

Tennessee Paper owns forest lands and a lumber mill in Alabama. As part of its operation, Tennessee Paper hires loggers to fell timber on the property and haul logs to its mill. Among the persons hired in 1978 was Rubel Lee Mauldin. Mauldin used his own truck, his own equipment, chose his own working hours, and hired his own employees. One of these employees was Melvin Ray Holley, who assisted Mauldin in both cutting and hauling timber. No social security deductions or other withholding taxes were taken from Mauldin's pay by Tennessee Paper, except for contractor liability insurance and workmen's compensation premiums deducted by Tennessee Paper and forwarded to an insurance carrier on Mauldin's behalf.

On April 19, 1978, Melvin Ray Holley was driving a truck owned by Mauldin and carrying logs belonging to Tennessee Paper when the left front hub and wheel of the truck suddenly came off. The hub and wheel struck a car in which Rayford and Kathleen Williams were riding, causing it to swerve into the path of oncoming traffic where it collided with another vehicle, killing the Williamses. Pre-trial discovery indicated that the wheel flew off as a result of continuous overloading and poor maintenance of Mauldin's vehicle.

The initial issue presented by Tennessee Paper's summary judgment motion is whether there is any genuine issue of material fact over Tennessee Paper's relationship with Mauldin; that is, did the evidence show, as a matter of law, that Mauldin was only an independent contractor of Tennessee Paper? If Mauldin was an independent contractor and not an employee, then Tennessee Paper is not responsible for his physical conduct under the doctrine of respondeat superior. See Restatement (Second) of Agency, §§ 2(3), 220 (1957).

On summary judgment, all reasonable inferences from the facts are viewed in favor of the non-movant; however, once the motion is supported as required by A.R.Civ.P., Rule 56(e), "the motion is to be granted unless the adverse party makes an evidentiary or factual showing in opposition to show that there is a genuine issue of fact for trial." Butler v. Michigan Mut. Ins. Co., 402 So.2d 949, 951 (Ala.1981).

In order to determine if Mauldin was an employee of Tennessee Paper, the crucial factor is the right of Tennessee Paper to control the manner of Mauldin's performance. Solmica of the Gulf Coast, Inc. v. Braggs, 285 Ala. 396, 232 So.2d 638 (1970). See Columbia Eng'g Int'l, Ltd. v. Epsey, 429 So.2d 955 (Ala.1983). "Control is not established if the asserted [employer] retains the right to supervise the asserted [employee] merely to determine if the [employee] performs in conformity with the contract." Bloedel Timberlands Dev., Inc. v. Timber Indus., Inc., 28 Wash.App. 669, 674, 626 P.2d 30, 33 (1981). See Solmica supra, 285 Ala. at 398, 232 So.2d at 640.

Appellants argue that Tennessee Paper did have the right to control the manner of Mauldin's performance. Two types of evidence are presented. First, Tennessee Paper inspected the work site. These inspections were conducted to insure that Mauldin was complying with his contract. Appellants' brief paraphrases deposition evidence to the effect that "The main problem Tennessee had with its loggers was concerning the manner in which the loggers cut the trees; i.e., trees were cut small and sometimes were not cut." The only reasonable inference from this testimony is that the purpose of Tennessee Paper's inspections was to supervise conformity with contract requirements. Tennessee Paper wished to make sure that small trees were not injured and that mature trees were harvested. Appellants' subtle implication that Tennessee Paper's inspections concerned "the manner in which the loggers cut the trees" is obviously not true. Tennessee Paper did not tell Mauldin how to cut or remove the trees; rather, Tennessee Paper supervised compliance with the contract specifications. Appellant cannot point to evidence showing that Tennessee Paper directed the manner of the work, offered advice on cutting and removal techniques, suggested changes in the work schedule, or attempted to supervise the manner of performance in any other way. Nor did Tennessee Paper reserve the right to control the manner of performance in its contract with Mauldin.

Appellants contend that Tennessee Paper knew the type and use of Mauldin's equipment. Such knowledge, without more, is insufficient to support an inference that Mauldin is an employee of Tennessee Paper. Indeed, Mauldin supplied all the equipment used, a factor which supports the finding of independent contractor status. See Restatement (Second) of Agency, § 220(2)(e) (1957).

By examining the relevant evidence, we cannot find a reasonable inference of a genuine issue concerning the alleged employment relationship between Tennessee Paper and Mauldin. The evidence conclusively establishes Mauldin as an independent contractor. Appellants attempt to show that these same facts arose in three other cases that found the existence of an employment relationship. Each case is distinguishable for a different reason. In Solmica, supra, this Court affirmed a jury's finding that John Cornelson, an aluminum siding applicator, was an employee of Solmica. Unlike the present case, the manager of Solmica "instructed Cornelson and the other applicators as to the way he wanted the siding applied ...." 285 Ala. at 400, 232 So.2d at 642 (emphasis added). Solmica retained and exercised the right to control the manner of application, above and beyond contract specifications related to the final product. The control exercised in Solmica is clearly different from the inspections conducted by Tennessee Paper.

Sawyer v. Chevron U.S.A., Inc., 421 So.2d 1263 (Ala.1982), is also distinguishable, although for other reasons. In Sawyer, this Court reversed summary judgment, finding a genuine issue of material fact over whether McDonald Petroleum, a trucking company, was an employee of Chevron. Several major differences are apparent. First, the McDonald trucks bore the Chevron logo. Other courts have held that such advertising may establish a public representation of apparent authority and therefore create an employment relationship. See generally Gizzi v. Texaco, Inc., 437 F.2d 308 (3d Cir.1971); Sutton v. Chevron Oil Co., 85 N.M. 604, 514 P.2d 1301 (N.M.App.), aff'd, 85 N.M. 679, 515 P.2d 1283 (1973). No such representations were made by Tennessee Paper. More importantly, Chevron owned the facilities from which McDonald Petroleum conducted its business, limiting McDonald's independence. Tennessee Paper did not control Mauldin in such a manner. Finally, McDonald and the trucking employees described by the cases cited in Sawyer were on call at all times subject to the employer's direction. ¹ See Cox v. Howard Hall Co., 289 Ala. 35, 37, 265 So.2d 580, 582 (1972); Stevens v. Deaton Truck Lines, 256 Ala. 229, 234, 54 So.2d 464, 469 (1951). The right to control another's time has been described as the quintessential ingredient of an employment relationship. See Seavey, Studies in Agency 220-22 (1949). Tennessee Paper had no right to control Mauldin's time. On each ground, Sawyer is materially different from the present case.

Finally, appellants rely on a number of workmen's compensation cases such as Davis-Day Timber Co. v. Gentry, 54 Ala.App. 385, 309 So.2d 97 (1975). Appellants suggest that the test of control relating to such determinations necessarily must be the same in all cases. Such a position is legally incorrect. The workmen's compensation law is liberally construed to carry out the beneficent purposes of the act and to eliminate procedural technicalities. Sun Papers, Inc. v. Jerrell, 411 So.2d 790 (Ala.Civ.App.1981); Defense Ordinance Corp. v. England, 52 Ala.App. 565, 295 So.2d 419 (1974). The definition of employee has been gradually broadened to include borderline cases under workmen's compensation schemes. A. Larson, Workmen's Compensation, § 43.00 at 8-1 (1980). As Professor Larson of Duke has recognized, "the basic purpose for which the definition is used in compensation law is entirely different from the common-law purpose." Id. § 43.42 at 8-16 (emphasis in original). Therefore, Gentry and other workmen's compensation cases do not help this Court to ascertain the common law relationship between Tennessee Paper and Mauldin.

The second issue raised by appellants is whether Tennessee Paper may be held responsible for the Williamses' deaths because Mauldin's activities presented a peculiar risk of physical harm. The Restatement (Second) of Torts § 416 (1965) provides:

"One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the...