Stevens v. Mitchell

102 So. 2d 237, 234 La. 977, 1958 La. LEXIS 1165

• Court: Supreme Court of Louisiana
• Decided: April 21, 1958
• Docket: 43414
• Status: Published

Opinions

MOISE, Justice.

While assisting in loading logs on a truck owned by J. E. Mitchell, O. D. Stevens suffered injuries on June 16, 1955, from which he died the following day, June 17, 1955.

Stevens’ widow, Mrs. Bonnie Stevens, filed the present workmen’s compensation proceeding against J. E. Mitchell, Elmo Tullos, d/b/a Tullos Lumber Company, and Consolidated Underwriters, for compensation in the amount of 321/4% of $40 for three hundred weeks ($3,900), plus medical, surgical, hospital, funeral, and transportation expenses.

The trial judge assessed liability for compensation against J. E. Mitchell only, on the theory that there was a vendor and vendee relationship between J. E. Mitchell and Elmo Tullos, d/b/a Tullos Lumber Company.¹ The Court of Appeal, Second Circuit, affirmed the judgment. On application for a Writ of Review, this Court unanimously granted same. Article VII, sec. 11, Louisiana Constitution of 1921, LSA.

It is admitted by all defendants that the deceased was injured during the course of his employment and that compensation is due his widow. The controversial issue is — which of the defendants is liable?

In the instant case, on an examination of the record we conclude that circumstantial variety coupled with substantial unity is the strongest kind of evidence.

The record discloses that T. O. Griffin discussed with Elmo Tullos the sale of his timber to Tullos at some future date, and that when he was ready to dispose of his timber to Tullos he negotiated with J. E. Mitchell, a logger, to cut and deliver the logs to Tullos at his mill. With Tullos’ consent, Mitchell discussed a price for the timber with Griffin, the price agreed upon being $28 per thousand to Griffin. Mitchell was to receive $22 per thousand for his labor. The majority of payments were made in cash, and Mitchell actually conveyed the money to Griffin. Mr. Griffin testified that he sold his timber to Tullos, and that he dealt with Mitchell because Mitchell knew all about his timber. He said that he looked to Tullos for payment. The deceased met his death while working on this project as an employee of.and under the supervision of Mitchell.

In his reasons for judgment, the trial judge stated:

“It is the contention of Elmo Tullos, d/b/a Tullos Lumber Company, and his insurer, Consolidated Underwriters, that the deceased, A. D. Stevens, was in the exclusive employ of J. E. Mitchell; that J. E. Mitchell purchased from Griffin the timber on his tract, and sold to Tullos delivered at Tullos’s mill, the logs at so much per thousand, and that the relationship between Mitchell and Tullos was that of vendor and vendee. That as such Elmo Tullos would not be liable and that Consoli'dated Underwriters, the insurer, would thus not be liable.

“It is the contention of J. E. Mitchell that he was merely hauling the logs for Mr. Tullos. That Mr. Tullos had purchased the timber from Mr. Griffin. That Mr. Tullos was paid for insurance at regular intervals to cover his operations and that aside from and regarddess of the relationship existing between them, that Mr. Tullos was obligated to furnish said insurance, and should be held liable.”

Mitchell’s testimony is to the effect that the immediate transaction was one of sale between Griffin and Tullos, and' that he acted only as an intermediary. The record clearly discloses that the logging operations were not those of a sale between Mitchell and Tullos; that it -was a sale between Griffin and Tullos. Mitchell could not sell these logs nor deliver them to any other mill. He could only cut the logs on the Griffin tract arid deliver them to Tullos’ mill. All arrangements had to meet with the approval of both Tullos and Griffin. This is further substantiated . by the fact that when Stevens was killed, Tullos can-celled future delivery of timber from the Griffin tract. Under these circumstances, there could not be the relationship of vendor and vendee between Tullos and Mitchell.

Mitchell was an independent contractor, and,.as such, he endeavored to protect his employees. He stated that he paid Tullos -certain amounts to cover workmen’s com-' pensation liability. It was his understanding- that Tullos was to subscribe for coverage under a policy which he, Tullos, carried.

The Workmen’s Compensation Law speaks with authority. In LSA-R.S. 23 :- 1061, it provides:

“Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work or to his dependent, any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed.

“Where the principal is liable to pay compensation under this Section, he shall be entitled to indemnity from any person who independently of this Section would have been liable to pay compensation to the employee or his dependent, and shall have a cause of action therefor.”

Having established that at best Mitchell was an independent contractor, it follows that Tullos was the principal contractor and as such was primarily liable to Mrs. Bonnie Stevens, widow of O. D. Stevens. Kline v. Dawson, 230 La. 901, 89 So.2d 385.

The next question presented is whether Tullos’ insurer, Consolidated Underwriters, is responsible for the liability. Tullos’ coverage reads as follows:

“Coverage B — Employers’ Liability,

“To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury by accident or disease, * * * by any employee of the insured arising out of and in the course of his employment by the insured either in operations in a state designated in Item 3 of the declaration or in operations necessary or incidental.”

Item 4 classified Tullos’ operations as follows:

“ * * * Logging or Lumbering— N. O. C. — including transportation of logs to mill; construction, operations, maintenance or extension of logging roads or logging railroads; Drivers, Chauffeurs and their Helpers — (Mill operations to be separately rated)”

The insurance contract constituted the law between Tullos and Consolidated Underwriters. Moll v. Mutual Health Ben. & Acc. Ass’n, 223 La. 511, 66 So.2d 320. A reading of the entire three year policy (which expired on January 1, 1958) as a whole convinces us that it was the intention of the insurance company to cover Tullos’ logging operations, as well as all of his employees.

“ * * * No policy of insurance against liability under this Chapter shall be made unless the policy covers the entire liability of the employer; provided * * * LSA — R.S. 23:1162.

Clause 8 of the Policy reads:

“All of the provisions of the workmen’s compensation law shall be and remain a part of this policy as fully and completely as if written herein, sjc * >jc

The method of payment of insurance premiums by Tullos to Consolidated Underwriters was hot one of preciseness or exactness. It was one of settlement for premiums over a period of time. He mailed to the insurance company the total amount of his monthly payroll — not the names of his employees nor their individual wages. Tullos stated that the insurance company did not know whose wages were included. That was not the fault of Stevens nor of Mitchell. Tullos was later billed according to payroll figures. The insurance company was satisfied that there was compliance with the Conditions of the policy, Clause 2, which reads:

“If this policy is written for a period longer than one year, all the provisions of this policy shall apply separately to each consecutive twelve months period, or, if the first or last consecutive period is less than twelve months, to such period of less than twelve months, * * ”

Tullos accepted insurance premium money to cover Mitchell’s employees when Mitchell was performing logging operations for Tullos on an adjoining tract (Whatley Tract), which money was submitted to the insurance company. The insurance premium money, for coverage of his employees while engaged in logging operations on the Griffin Tract, was paid by Mitchell to Tullos before Stevens’ death, but this money was not submitted to the insurance company until after Stevens’ death. The insurance company refused to cover Mitchell’s logging operations, after Stevens’ death, and ordered Tullos to return to Mitchell the money paid. This was at a suspicious time, because Stevens had already been killed.

We do not believe that the time of payment of premiums was of importance under this policy, so long as such payment was within a twelve month period. Clause 2, Conditions, supra. The logging coverage provisions, supra, and the large general liability were undoubtedly written into the policy to cover just such a situation as is herein involved.

Therefore, it is equitable, and in contemplation of this humanitarian Workmen’s Compensation Law, that, as the principal contractor, Elmo Tullos, d/b/a Tullos Lumber Company, is liable to the widow of O. D. Stevens; and, because of the insurance policy in force at the time of O. D. Stevens’ death, Consolidated Underwriters should pay the liability. This seems to be a matter of simple justice and a measure of protection to a workman who leaves dependents behind him “when he has gone to that great beyond from which no traveler ever returns.”

Plaintiff prayed for $35 transportation and lodging expenses to and from the hospital, and we agree with the trial judge that these items were not sufficiently proved. The other items demanded by plaintiff were proved, and they are limited to the amounts set forth in her petition.

For the reasons assigned, the judgments of the District Court and the Court of Appeal, Second Circuit, are reversed and set aside. It is now ordered that there be judgment herein in favor of plaintiff, Mrs. Bonnie Stevens, and against Elmo Tullos, d/b/a Tullos Lumber Company, and Consolidated Underwriters, in solido, to pay to plaintiff 32j/j per cent of $40 per week for a period of three hundred weeks dating from June 16, 1955, together with medical, surgical, and hospital expenses of $780 and funeral expenses and burial plot of $265. It is further ordered that the medical, surgical, and hospital expenses, funeral expenses and burial plot, together with all past due installments on the compensation payments, plus interest at 5% thereon, be paid in cash, and that the remaining unpaid compensation weekly payments bear interest at the rate of 5% from the due date of each installment. It is further ordered that the fee of the attorney for plaintiff be fixed at 20% of the net amount collected by plaintiff under this judgment.

1 . Williams v. George, La.App., 15 So.2d 823; Grant v. Consolidated Underwriters, La.App., 33 So.2d 575; Smith v. Crossett Lumber Co., La.App., 72 So.2d 895; Wysinger v. Godfrey, La.App., 86 So.2d 597.