Bargery v. Obion Grain Co.

785 S.W.2d 118, 1990 Tenn. LEXIS 67
CourtTennessee Supreme Court
DecidedFebruary 20, 1990
StatusPublished
Cited by18 cases

This text of 785 S.W.2d 118 (Bargery v. Obion Grain Co.) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bargery v. Obion Grain Co., 785 S.W.2d 118, 1990 Tenn. LEXIS 67 (Tenn. 1990).

Opinion

OPINION

FONES, Justice.

This is a direct appeal from the judgment of the Obion County Chancery Court that dismissed Jerry Lynn Bargery’s action for Workers’ Compensation benefits. The chancellor held that Mr. Bargery had not proven that he was Obion Grain Company’s employee, and he therefore dismissed the suit. We affirm.

Obion Grain Company (hereinafter “Obion Grain”) buys corn, soybeans, wheat, and other grains from farmers. It stores the grain in tanks. This grain is then moved from Obion Grain to a terminal elevator. The company owns one truck to haul grain, which is driven by its own employee. During the peak seasons, it often has to hire outside truck drivers to haul the grain to the terminal elevators. The standard fee paid to these truck drivers is ten cents per delivered bushel.

Employees of Obion Grain are required to use a time clock at work, while outside truck drivers are required to keep a ticket book which they bring in to get paid for each bushel. The truck drivers are told that if they want to work on a particular occasion the grain will be loaded onto their trucks on a first-come, first-serve basis.

[119]*119Johnny Board is one of the outside truck drivers that Obion Grain occasionally used. Mr. Board is predominately a farmer, but he also owns a truck that he uses to earn money. He drives his own truck sometimes, but he often uses other drivers. In August of 1985, Mr. Board was looking for a driver for his truck. Jerry Lynn Bar-gery, the plaintiff, approached Mr. Board about a job. Mr. Board told Plaintiff that if he “could get the truck something to do, why, he could drive it.” Plaintiff was also told that he would receive twenty-five percent of whatever Mr. Board received.

The two men went to Obion Grain and talked with Mike Miller, the manager at the company. It was decided that Plaintiff, driving Mr. Board’s truck, would haul grain for the standard ten cents per bushel. Thus, Plaintiff received two and one-half cents for each bushel he hauled.

Plaintiff testified that Mr. Board told him at this meeting that Mr. Miller would be his boss and that he should do what Mr. Miller said. Mr. Board testified that he did tell Plaintiff to follow the manager’s instructions. Mr. Miller, however, testified that he did not recall any such instruction being given. The evidence reveals that Obion Grain did instruct Plaintiff on where to take the grain that was loaded in his truck. On the other hand, Mr. Miller did not tell Plaintiff how many trips to make each day or what routes to take.

Plaintiff was paid directly from Obion Grain. Mrs. Lois Jean Thompson, who is in charge of the office operations at the company, testified as to the underlying facts of this transaction. Mr. Board asked Mrs. Thompson to take twenty-five percent of the money owed to him and to pay Plaintiff. He stated that he was busy and that it would be easier for her to do it. Mrs. Thompson also testified that she did not take social security and federal income taxes out of Plaintiff’s check. She did not report the payments to Plaintiff on a W-2 form or any other form. She did complete a 1099 form for payments made to Mr. Board. This included all hauling done for Obion Grain during the year using Mr. Board’s truck regardless of who drove it. W-2 forms are used for employees’ wages and 1099 forms are used for payments other than wages.

Mr. Board furnished the fuel for his truck, and he serviced it. He also provided insurance for the truck. Plaintiff hauled loads on Mr. Board’s farm on at least two occasions during the time he was hauling for Obion Grain.

On 29 January 1986, Plaintiff was injured when he fell from Mr. Board’s truck while at Obion Grain to pick up a load of grain. He was climbing the truck to unhook a tarp on top of the trailer when he fell.

Plaintiff and Mr. Board filed a claim for medical expenses with Mr. Board’s insurance company in May of 1986. Plaintiff received the full coverage of $2,000.

On 22 January 1987 Plaintiff filed a complaint against Obion Grain for workers’ compensation benefits. After the trial, the chancellor held that Plaintiff failed to show by a preponderance of the evidence that he was an employee of Obion Grain. The sole issue in this appeal is whether the chancellor properly ruled that Jerry Lynn Bargery was not Obion Grain’s employee.

Plaintiff presents this Court with two arguments in support of his contention that he was the defendant’s employee. First, Plaintiff argues that due to Obion Grain’s control he was an employee and not an independent contractor. Second, Plaintiff alleges that his employment status can be based on the “lent employee” theory.

First, this Court set out the factors to be used when determining the status of a work relationship in Masiers v. Arrow Transfer & Storage Co., 639 S.W.2d 654 (Tenn.1982). We stated:

There are a number of indicia to be considered by a trier of fact in determining the existence or nonexistence of an independent contractor relationship such as, (1) the right to control the conduct of the work, (2) the right of termination, (3) the method of payment, (4) the freedom to select and hire helpers, (5) the furnishing of tools and equipment, (6) self schedul[120]*120ing of working hours, and (7) being free to render services to other entities.

Id. at 656. The Masters court noted that while all factors are important the “right to control” is the primary test. Id. See also Stratton v. United Inter-Mountain Tel., 695 S.W.2d 947, 950 (Tenn.1985) and Lindsey v. Smith & Johnson, Inc., 601 S.W.2d 923, 925 (Tenn.1980). This Court further explained that “a party to a contract can exercise direction and control over the results of the work without destroying the independence of the contract or creating an employer-employee relationship.” 639 S.W.2d at 656.

In the present case, the Chancellor held, “[T]he only proof in this case with reference to [the right of control] is one that is contended by the Plaintiff that he was told where to deliver his grain.” Appellate review of findings of fact by the trial court is de novo, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn.Code Ann. § 50-6-225(e) (1988). After a review of Plaintiffs brief and a de novo review of the record, we find that the chancellor was correct in his conclusion that Obion Grain’s only control over Plaintiff was the instruction on where to deliver his grain. Obion Grain did not control the details and methods of Plaintiffs work. It did not instruct him on the number of deliveries per day or the routes of the delivery. An instruction on where to deliver grain is a control over the end result of a job. It is a basic type of control that is consistent with the contractor-contractee relationship. See Lindsey v. Smith and Johnson, Inc., 601 S.W.2d 923, 926 (Tenn.1980).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Soto, Victor v. DENNY PATTERSON, JR. d/b/a PATTERSON CONSTRUCTION
2022 TN WC 53 (Tennessee Court of Workers' Comp. Claims, 2022)
Jimmy Wayne Helton v. Earl Lawson
Court of Appeals of Tennessee, 2019
Rodrigo Ayala Garcia v. Mark Hale d/b/a Mark's Roofing
2016 TN WC 302 (Tennessee Court of Workers' Comp. Claims, 2016)
Timmerman, Ryan v. Indta Dry of Knoxville,
2016 TN WC 87 (Tennessee Court of Workers' Comp. Claims, 2016)
Hartley, Kevin v. Allen Hammons (General Contractor)
2016 TN WC 65 (Tennessee Court of Workers' Comp. Claims, 2016)
Peters, James v. A Clean Connection, LLC.
2016 TN WC App. 6 (Tennessee Workers' Comp. Appeals Board, 2016)
Langford, Jordan v. Cleveland Tent & Party Rentals
2015 TN WC 70 (Tennessee Court of Workers' Comp. Claims, 2015)
Thompsen, Jason v. Concrete Solutions
2015 TN WC App. 3 (Tennessee Workers' Comp. Appeals Board, 2015)
Thompsen, Jason v. Concrete Solutions
2015 TN WC 7 (Tennessee Court of Workers' Comp. Claims, 2015)
Jewell, Kevin v. Cobble Construction & Arcus Restoration
2015 TN WC App. 1 (Tennessee Workers' Comp. Appeals Board, 2015)
Lindsey v. Trinity Communications, Inc.
275 S.W.3d 411 (Tennessee Supreme Court, 2009)
In re Fedex Ground Package System, Inc.
273 F.R.D. 424 (N.D. Indiana, 2008)
Anderson v. Fru-Con Construction Corp.
125 F. App'x 5 (Sixth Circuit, 2004)
Galloway v. Memphis Drum Service
822 S.W.2d 584 (Tennessee Supreme Court, 1991)
Catlett v. Indemnity Insurance Co. of North America
813 S.W.2d 411 (Tennessee Supreme Court, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
785 S.W.2d 118, 1990 Tenn. LEXIS 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bargery-v-obion-grain-co-tenn-1990.