Boyd v. Crosby Lumber & Manufacturing Co.

166 So. 2d 106, 250 Miss. 433, 1964 Miss. LEXIS 474

• Court: Mississippi Supreme Court
• Decided: July 1, 1964
• Docket: 43053
• Status: Published

Opinions

Ethridge, J.

The question in this case is whether there was substantial evidence and reasonable inferences therefrom to support the decision of the Workmen’s Compensation Commission that J. E. Durham, and thus Louis Fred Boyd, the appellant, was an employee of Crosby Lumber & Manufacturing Company (called Crosby), and not an independent contractor. We think there was. Reversing its attorney referee, the commission held Boyd was working under Durham for Crosby, and was therefore an employee of Crosby. It remanded the claim to its attorney referee to determine the amount of compensation due claimant for his work-connected injury. The Circuit Court of Wilkinson County reversed the commission and dismissed the claim.

I.

We state the facts and inferences from the evidence which the commission found and was justified in finding-: Boyd was forty-four years of age, married with five children. He had no education, but was a capable driver of a caterpillar tractor. Crosby owns and operates a large sawmill, and has a considerable acreage of timber land. Its crews cut the timber, but Crosby entered into short-term written contracts (for one, two, or three months) with others to load and haul its logs from the woods to the mill. Durham, the alleged independent contractor, had been engaged in this type of work for Crosby for five or six years. The haulers carried the logs cut from a designated tract of timber. When the contract expired, another was entered into. Sometimes a second contract was entered into covering the same tract of timber as covered the one which had expired. This was the case in one of the instant contracts between Crosby and Durham.

The printed form of contract in question signed by Durham was in formal terms, and stated that in consideration of $1 and other considerations, Durham agreed to load, haul and deliver logs of Crosby from the timber that Crosby owned, “within two months from the date hereof from the lands described.” The logs were to be delivered to the log ramp at Crosby, Mississippi by Durham, for which Crosby agreed to pay him $17 per 1000 feet. Payments for such work were to be made twice each month. It was agreed that Crosby “is to have no control whatever over the matter, method or means of loading, hauling, delivering or handling the said logs,” and that Crosby “is to hold second party (Durham) responsible only as to the result of his work as agreed to herein and not as to the means by which it is accomplished. ’ ’ The contract was executed by Crosby and Durham, with two witnesses.

The prices in various contracts took into consideration certain variables such as distance and terrain. Often contracts were entered into before the timber was cut. Durham had been engaged in this type of work for Crosby for five or six years, doing either all or practically all of his work for it. Another alleged independent contractor, Hightower, said he had been doing this kind of work for ten years, hauling exclusively for Crosby that entire period of time. Durham’s brother did similar work for Crosby, and he “indicated that he could breach or cease work under one of defendant’s contracts any time he so desired without obligation.”

Durham was paid by Crosby by check on the first and fifteenth of each month. Hauling of the logs and related work performed by Durham was “an integral part of the defendant’s business and absolutely necessary to the business as defendant depended on” him and other haulers. Crosby on various occasions caused these haulers to cease their operations when weather conditions were bad, and when the mill yard was crowded with logs. The time in which Durham and his crew could haul the logs and unload them at the mill was limited by Crosby to a period between 7:00 a.m. and 4:00 p.m. daily. Durham and other haulers were directed where and how to spot trucks for unloading, and occasionally were caused delay in their operations by having to wait in line at the mill for that purpose. Further delay sometimes was caused by Crosby when Durham and his crew were waiting for logs to be cut. Crosby’s land and timbermen “frequently inspected the premises and told claimant to stay off the little timber and not to mash it down, and sent him back to pick up single logs left behind.” Boyd knew his job well and needed no direct supervision. Crosby sold supplies to Durham and other similar contractors on credit, and then held it out of their pay. For the purpose of operating the mill and expediting the hauling contracts, Crosby had a repair shop where these contractors had their equipment repaired. The costs of such repairs were withheld from their pay. All of the hauling for Crosby were carried out under contracts similar to those with Durham, except that done by a crew of three men who were employed directly by the company for limited purposes.

Durham hired Boyd and two other persons, fixed their rate of pay, hours of employment, and paid them by his personal checks. He directed these men in the hauling operations. Crosby did not select Boyd or the other men working under Durham, and made no deductions from their pay for social security or income withholding taxes. On March 9, 1961, while working in the woods under Durham, Boyd received injuries for which this claim was filed.

II.

An analysis of the pertinent rules and cases is necessary to show the reasons for affirmance of this award of compensation benefits. In general, it is said that the right to control, not actual control of, the details of the work is the primary test of whether a person is an independent contractor or an employee. Relevant characteristics or tests are usually listed, with all except the control test being considered merely indicia pointing one way or the other. See A.L.I., Rest. Agency 2d (1958), § 220, p. 485; Kisner v. Jackson, 159 Miss. 424, 132 So. 90 (1931); Carr v. Crabtree, 212 Miss. 656, 55 So. 2d 408 (1951); Shumpert Truck Lines v. Horne, 227 Miss. 648, 86 So. 2d 499 (1956). No general rule can be stated as to the weight of these elements, over fifteen in number. Their significance varies according to the facts of each particular case. The weight to be given each of the factors pertaining to the employee-contractor question is ordinarily to be decided by the trier of facts. It is the ultimate right of control, not the overt exercise of that right, which is decisive. Probably the four principal factors under the control test, are “(1) direct evidence of right or exercise of control; (2) method of payment; (3) the furnishing of equipment; and (4) the right to fire.” 1 Larson, Workmen’s Compensation Law, § 44.

There have been a number of cases from this jurisdiction involving the employee-contractor distinction with reference to loggers and lumber haulers. In some of them the court found that the facts reflected an independent contractor relationship. Carr v. Crabtree, supra; Simmons v. Cathey-Williford & Jones Company, 220 Miss. 389, 70 So. 2d 847 (1954); Stovall v. A. Deweese Lumber Co., 222 Miss. 833, 77 So. 2d 291 (1955); Bardwell v. Perry Timber Co., 222 Miss. 854, 77 So. 2d 708 (1955); E. L. Bruce Co. v. Hampton, 225 Miss. 242, 83 So. 2d 101 (1955); Ainsworth v. Long-Bell Lumber Co., 233 Miss. 38, 101 So. 2d 100 (1958); Employers Liability Ins. Co. v. Haltom, 235 Miss. 74, 108 So. 2d 29 (1959).

In other logging cases it has applied the control test, and held that the party was an employee. Sones v. Southern Lumber Co., 215 Miss. 148, 60 So. 2d 582 (1952); J. H. Marter v. Cathey-Williford-Jones Lumber Co., 225 Miss. 118, 82 So. 2d 724 (1955); Employers Ins. Co. of Alabama v. Dean, 227 Miss. 501, 86 So. 2d 307 (1956). In Sones the key test was whether the person "is in fact independent, free of the will of his employer:— actually and substantially free from his control.” It was noted that the control test stemmed largely from the common law rule in negligence cases, dealing with vicarious liability; and "the rule is even more liberal in compensation cases.” The servant concept at common law performed the function of delimiting the scope of a master’s vicarious tort liability. In contrast, compensation law "is concerned not with injuries by the employee in his detailed activities, but with injuries to him as a result not only of his own activities . . . but of . . . co-employees, .... To this issue, the right of details of his work has no such direct relation as it has to the issue of vicarious tort liability.” 1 Larson, § 43.42, pp. 630-631. Further, Sones gave weight to the fact that the logging job was an integral part of the overall operation.

The general rule is stated thus in 1 Larson, § 45.22, p. 633:

“The hauling and loading of logs, ties, and the like have usually been classified as part of the employer’s business, so as to bring within the act trucker-owners who are paid by quantity and who are free to hire their own assistants and, in some cases, to work on their own time. As shown above in connection with the question of extent of control of details, this is particularly true when the activities of the truckers must be integrated and coordinated with the employer’s over-all production pattern.” Halliburton v. Texas Indemnity Ins. Co., 147 Tex. 133, 213 S.W. 2d 677 (1948); Bowser v. State I.A.C., 182 Ore. 42, 185 P. 2d 891 (1947); Burruss v. B.M.C. Logging Co., 38 N.M. 254, 31 P. 2d 263 (1934); Burchett v. Dept. of Labor and Ind., 146 Wash. 85, 261 P. 802, 263 P. 746 (1927); Hebert v. Gates, 50 So. 2d 859 (La. App. 1951); State Hwy. Comm. v. Brewer, 196 Okla. 437, 165 P. 2d 612 (1946); Blaine v. Ross Lbr. Co., 224 Ore. 227, 355 P. 2d 461 (1960).

Wade v. Traxler Gravel Co., 232 Miss. 592, 100 So. 2d 103 (1958), involving- a truck owner who hauled gravel by the cubic yard, examined in depth both the control test, with reference to whether in fact the man was truly independent, and the relative nature of the work test. The commission’s holding that he was an independent contractor was reversed. Wade was an employee. The fact that the hauler was paid a unit price per yard was not proof in itself he was an independent contractor. The majority of modern decisions, it was said, “involving contiimity of service give little weight to the fact that a trucker is compensated at so much per thousand feet of logs or lumber . . . .” It was further stated that “there is a growing tendency to classify owner-drivers as employees when they perform continuous service which is an integral part of the employer’s business.” (Emphasis added). Ownership of the truck was not determinative. Traxler Gravel cited with approval 1 Larson, § 45, p. 657, to the following effect:

“The modern tendency is to find employment when the work being done is an integral part of the regular business of the employer, and when the worker, relative to the employer, does not furnish an independent business or professional service.”

The Court then concluded:

■ “With these facts in mind, it cannot be doubted that the work which Wade and the other truckers performed constituted an integral part of the regular business of the company; and we think that it cannot be said that Wade and the other truckers, relative to Traxler, were engaged in an independent business or were rendering a professional service.”

In Shumpert Truck Lines v. Horne, 227 Miss. 648, 86 So. 2d 499 (1956), a truck line engaged alleged independent contractors, truck owners, to haul its freight, and Horne along with others performed this job. The court cited with approval the above statement by Larson, and said:

“In this case it is true that Shumpert did not directly employ Horne himself, but Horne was not engaged in any independent business or professional service but devoted his entire time to the business of Shumpert, delivering and picking up freight and collecting therefor, and his wages were paid out of the freig’ht receipts of Shumpert Truck Lines. He was not an independent contractor nor was his immediate superior Harmon. To all intents and purposes, Horne was the employee of Shumpert, and Shumpert could have stopped his services as well as those of Harmon at any time.”

Mississippi Employment Security Comm. v. Plumbing Wholesale Co., 219 Miss. 724, 69 So. 2d 814 (1954), although applying the control test, also considered the relative nature of the work test, the fact that the alleged independent contractor was doing the company’s regular business, was an integral part of its basic operation, and was not furnishing an independent business or professional service. Bush v. Dependents of Byrd, a gravel truck case, 234 Miss. 782, 108 So. 2d 211 (1959), applied both the control and the relative nature of the work test and followed Traxler Gravel. See also Kahne v. Robinson, 232 Miss. 670, 100 So. 2d 132 (1958).

In short, in workmen’s compensation cases Mississippi decisions and the weight of authority elsewhere hold that there are two tests to be considered in analyzing an employee-independent' contractor question: (1) the control test; and (2) the relative nature of the work test. The latter contains these ingredients: “the character of the claimant’s work or business — how skilled it is, how much of a separate calling- or enterprise it is, to what extent it may be expected to carry its own accident burden and so on — and its relation to the employer’s business, that is, how much it is a regular part of the employer’s regular work, whether it is continuous or intermittent, and whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of a particular job.” 1 Larson, § 43.52; see Comment, Employee or Independent Contractor, 26 Miss. L.J. 250 (1955).

Appellee relies on Crosby Lumber & Manufacturing Co. v. Durham, 181 Miss. 559, 179 So. 285 (1938), and contends this is a precedent controlling here. We do not agree. D. P. Durham drove a logging truck owned by Stockstill, who executed with Crosby a contract similar in part to the present one. Durham was killed while driving this truck with defective tires. His widow sued in tort for damages. It was held that, since the evidence did not disclose exercise of any control by Crosby over Stockstill, the relation had to be determined by the contract itself, and Stockstill was an independent contractor. There were no recurring, short-term contracts over a long period of time, but only one contract for six months. In the instant case many facts reflect Crosby’s right of control over J. E. Durham. His status is not determined exclusively by the contract. Moreover, we have previously held that in workmen’s compensation cases the contractor-employee relation involves some different criteria than does a master’s liability in tort for the act of his servant. Durham was not a workmen’s compensation case, and did not involve many of the issues discussed in this opinion. It was decided over a decade before the act was passed. Hence, because the facts are different, and it did not involve application of the workmen’s compensation act, Durham is not in point.

III.

Applying these precedents and rules to the instant case, the question is whether there was substantial evidence and reasonable inferences therefrom to support the finding of the commission that Durham, and thus Boyd, was an employee of Crosby, and not an independent contractor. The commission was amply warranted in so finding. The question is a realistic one. Was Durham an independent contractor in fact, or in practical effect did Crosby have the right to control him? In any showdown Crosby assuredly would have, and in effect exercised the ultimate right to dictate the method of work, where there was any occasion to do so. As to the total operation, and Durham’s relation to it, what is said in 1 Larson, § 44.20, p. 641, applies here:

“. . . the whole operation was a complex and coordinated one in which the movements of the trucks had to be keyed not only to each other but to the speed of loading and the availability of logs at the loading-end and of storage space at the receiving end. The timing, sequence and general disposition of truck movements in such an operation, then, is more than an ‘end result’; it is an integral part of the over-all production mechanism which must be controlled to avoid chaos and disorganization. ’ ’

The log hauling trucks were necessary to Crosby’s business. It could and did cause Durham and other independent contractors to cease operations, when weather conditions were bad, and when the mill yard was crowded with logs. Crosby directed the time in which Durham and his crew could haul and deliver. He waited in line at the mill to unload, and was directed how and where to spot the truck for unloading. Delay was caused by Crosby when Durham and crew were waiting for logs to be cut. Crosby’s men inspected the premises, told claimant to stay off small timber and not to mash it down, and sent him back to pick up single logs left behind. Claimant needed no supervision in driving the caterpillar. Crosby sold supplies to Durham and other haulers, and held it out of their pay. It had a repair shop where Durham and others had their equipment repaired, and withheld that cost from the pay. All of the foregoing is direct evidence of the right of control of Durham.

It is also significant that Durham did not furnish an independent business. He entered into short-term written contracts, for one, two or three months. When these contracts expired others were made, sometimes covering the same tract, as in the instant case. Durham had been engaged in this type of work exclusively for Crosby for five or six years. The commission concluded that this worker did not hold himself out to the public as performing an independent business service, but regularly devoted all or most of his time to the particular employer. It was a continuing relationship with Crosby, which in substance amounted to employment, regardless of other factors. The work was regular, recurring, substantial, and exclusive, and was such a relatively large item to Durham that his relationship to Crosby could not be that of an independent businessman. See 1 Larson, § 45.31(a). These factors also constitute direct evidence of the right of Crosby to control Durham in his job. Durham’s business service as a logging hauler was not independent, separate and public in relation to this particular employer.

Moreover, the method of payment is relevant in the light of all other facts. Durham was paid twice a month, and from it was withheld the costs of repairs and supplies furnished him by Crosby. This was done on a recurring basis by quantity of logs hauled. It was a continuing service, indicating employment. The right to fire- is more than a neutral factor here. The commission observed that Durham’s brother, another alleged independent contractor, indicated that he could cease work under one of Crosby’s contractors any time he so desired without obligation. However, the key fact is that control of Durham was perpetuated, by the devices of short-term, written contracts, renewed regularly, and Durham’s working exclusively for Crosby for a number of years. He was dependent upon these additional, short-term contracts. Factors that the services are recurring and continuous, and that the alleged contractor is not engaged in fact in an independent business of his own, are important under the common-law, control test, as well as under the relative nature of the work rule. 4 Schneider, Workmen’s Compensation Law (1945), §§ 1063, 1069, 1074, 1067, 1109; 99 C.J.S., Workmen’s Compensation, §§ 94, 91.

Hence the control test shows, and the commission found, considerable direct evidence of the right of control of Durham by Crosby, including the method of payment and the right, at short periods, to terminate its long recurring relationship with him. See 58 Am. Jur., Workmen’s Compensation, §§ 137-138; Annos., 134 A.L.R. 1029 (1941), 147 A.L.R. 828 (1943), 158 A.L.R. 915 (1945). Durham was not truly independent, performing an independent business service, but devoted all or most of his time to Crosby under such contracts for recurring services.

In addition, under the relative nature of the work test, an equally valid and pertinent one under Mississippi’s workmen’s compensation act, claimant’s work for Durham and Crosby was an integral part of Crosby’s production process, and equally necessary, Durham was not performing an independent business service. He was not in a business of his own in a realistic sense. His work was an integral part of Crosby’s production process, in which, his activities had to he and were related to and coordinated with Crosby’s overall production pattern. First National Bank of Oxford v. Miss. Unemployment Compensation Comm., 199 Miss. 97, 106, 23 So. 2d 534 (1945), held that a janitor of a bank, who contracted to furnish janitor service, was an employee and not an independent contractor under the Unemployment Compensation Act. Although the contention he was an independent contractor required somewhat more credulity than the present case, this statement is relevant here: “If the real relationship, under such a state of facts, could be changed by a contract device such as last mentioned, employers could write themselves out from under nearly every workmen’s compensation law or unployment compensation statute in existence today.”

To call Durham an independent contractor would be to ignore the absence of the required factor of independence, the development of this state’s case law pertinent to the contractor-employee relation in workmen’s compensation law, the purposes of the Mississippi statute, and the great weight of authority elsewhere in this field. A realistic appraisal of the facts reflects existence of an employment status.

Beversed, order of Workmen’s Compensation Commission reinstated and affirmed, and cause remanded to Commission.

Lee, G. J., and Kyle, McElroy and Rodgers, JJ., concur.