Opinion
No. 1084.
April 8, 1964. Rehearing Denied April 28, 1964. Writ Refused June 8, 1964.
APPEAL FROM SEVENTH JUDICIAL DISTRICT COURT, PARISH OF CONCORDIA, STATE OF LOUISIANA, HONORABLE JESSE C. McGEE, J.
Dale, Richardson Dale, by Nathan M. Calhoun, Vidalia, for defendant-appellant.
Parker Parker, by A.B. Parker, Jena, Clyde W. Mullins, Joseph E. Brown, Natchez, Miss., for plaintiff-appellee.
Nesib Nader, Shreveport, for intervenor.
Before TATE, CULPEPPER and HOOD, JJ.
This is a workmen's compensation suit instituted by Bentley B. Bryant against the compensation insurer of Mullins Parker, a partnership domiciled in Natchez, Mississippi. The State Confederate Memorial Medical Center intervened to recover a sum of money alleged to be due it for medical services rendered to the claimant as a result of his injuries. After trial on the merits, judgment was rendered by the trial court in favor of the plaintiff, awarding compensation benefits based on total and permanent disability, and in favor of the intervenor for the greater portion of the amounts claimed by it. The defendant-insurer has appealed.
There is no issue as to disability or as to the rate of compensation which plaintiff would be entitled to receive if it is determined that he is entitled to recover at all under the compensation act. The principal question presented on this appeal concerns the relationship which existed at the time of the accident between the defendant's insured, Mullins Parker, on the one hand, and plaintiff-Bryant on the other. Plaintiff contends primarily that an employer-employee relationship existed between them, and in the alternative, that plaintiff was an independent contractor of Mullins Parker, with a substantial part of plaintiff's work time being spent in manual labor carrying out the terms of that contract. Plaintiff takes the position that under either circumstance he is entitled to recover from defendant under the Louisiana Workmen's Compensation Act, and accordingly, that the judgment of the trial court should be affirmed. Defendant contends that the relationship between Bryant and Mullins Parker was solely that of vendor and vendee, and accordingly, that the trial judge erred in holding that plaintiff is entitled to recover workmen's compensation benefits.
Under the Louisiana Workmen's Compensation Act a mere purchaser of pulpwood is not liable for compensation benefits for accidental injuries sustained by the seller or his employees. Taylor v. Employers Mutual Liability Insurance Company, 220 La. 995, 58 So.2d 206; Garner v. Southern Pulpwood Insurance Co., La. App. 3 Cir., 149 So.2d 157; Dunn v. Southern Pulpwood Insurance Company, La. App. 2 Cir., 141 So.2d 882; Benton v. Pope, La. App. 1 Cir., 130 So.2d 724; Cerie v. Malone, La. App. 3 Cir., 125 So.2d 254.
If the evidence in this case establishes, therefore, that Bryant was merely selling pulpwood to Mullins Parker, then Bryant clearly would not be entitled to recover compensation benefits from defendant, and the judgment of the trial court must be reversed. Plaintiff, on the other hand, would be entitled to compensation benefits, and the judgment of the trial court must be affirmed, if it is determined from the evidence that at the time of the accident: (1) Bryant was an employee of Mullins Parker, within the meaning of the Workmen's Compensation Act; or (2) that Bryant was an independent contractor for Mullins Parker, with a substantial part of Bryant's work time being spent in manual labor in carrying out the terms of the contract. See LSA-R.S. 23:1021(6); Sam v. Deville Gin, Inc., La. App. 3 Cir., 143 So.2d 838 (Cert. denied); Rashall v. Fallin Savage Timber Company, La. App. 3 Cir., 127 So.2d 238; and Welch v. Newport Industries, Inc., La. App. 1 Cir., 86 So.2d 704 (Cert. denied).
The evidence shows that during the year 1959 Mullins Parker operated a merchandising establishment in Natchez, Mississippi, selling chain saws, lawn mowers, axes, go carts and small engines, and it also engaged extensively in the business of buying and selling pulpwood. Pursuant to some understanding or arrangement between this partnership and International Paper Company, Mullins Parker was the exclusive supplier of pulpwood from the surrounding territory to the International Paper Company Plant in Natchez, Mississippi. Under this arrangement the International Paper Company purchased solely through Mullins Parker the pulpwood which was produced from the Parishes of Concordia, Tensas, Catahoula or Rapides, in Louisiana, as well as from some areas in Mississippi.
Mullins Parker itself produced no pulpwood. It did not maintain a pulpwood yard or stockpile, it employed no pulpwood crews and it owned no operating pulpwood equipment. The working arrangement between International Paper Company and Mullins Parker was that each week the latter received from the Paper Company a "purchase order" for a certain number of cords of pulpwood to be delivered to the Paper Company Plant, in Natchez, during the following week. Upon receipt of this purchase order each week, Mullins Parker apportioned the orders among a number of "pulpwood producers" by allotting to each such producer a certain number of "tickets," a ticket being an order for one load of pulpwood. Each ticket was actually a purchase order issued by Mullins Parker instructing the International Paper Company to accept a load of wood from the bearer of that ticket, and to pay to Mullins Parker the agreed price for that load.
The International Paper Company would not accept a load of pulpwood brought to its plant unless the producer presented with the load one of these "tickets" from Mullins Parker. If the producer had such a "ticket," and if the load of wood met all of the Company's specifications, including its requirements as to the kind, size, length and quality of wood, then the Paper Company would accept the load, and would pay Mullins and Parker for it later that week.
Each Saturday the pulpwood producers who had delivered wood to the International Paper Company for the account of Mullins Parker were paid by Mullins Parker for the pulpwood cut and hauled by them that week. Usually Mullins Parker deducted from the amount paid to a producer the amount owed by the producer to the landowner for stumpage, the amounts due as severance tax, and any amounts which may have been due by the producer to Mullins Parker for repairs or advances made during the week. Any deductions of that nature, however, were made pursuant to a prior understanding or agreement with the purchaser. Ordinarily the deduction for stumpage was made because the landowner had requested, and the producer had consented, that that be done in order that the landowner could be assured of receiving the amount due him as stumpage. No deductions were made by Mullins Parker at any time as premiums due for workmen's compensation or public liability insurance.
At these Saturday settlements each pulpwood producer who applied was usually given "tickets" or purchase orders for the number of loads of pulpwood which he felt that he could cut and deliver to the Paper Company Plant during the following week. While the mill was operating at full capacity, these tickets were plentiful and a pulpwood producer usually could obtain all of the tickets he wanted. At times when the mill was not operating at full capacity, however, the Paper Company did not purchase much pulpwood, and the pulpwood producers were limited as to the number of tickets or purchase orders which they might obtain.
When a pulpwood producer received tickets or purchase orders from Mullins Parker for the delivery of pulpwood to International Paper Company, he was under no obligation to deliver the number of loads of wood represented by those tickets. He would be paid only for the loads which he did actually deliver, but he would not be liable to Mullins Parker or to International Paper Company for having failed to deliver a load for each ticket which he had received. If the wood which the producer delivered to the Paper Company did not meet the specifications of that Company, the load would be refused and no obligation would be incurred on the part of the Paper Company or Mullins Parker.
The Johns Manville Company also purchased pulpwood which was produced in that area, but that Company looked to someone other than Mullins Parker to keep them supplied. They apparently purchased little or no pulpwood from Mullins Parker, and certainly a pulpwood producer did not have to obtain a purchase order or ticket from Mullins Parker in order to sell to Johns Manville. A pulpwood producer, and particularly the plaintiff in this suit, was under no obligation to sell to Mullins Parker the pulpwood produced from lands on which he owned the timber rights. He was free to sell the pulpwood which he produced from those tracts to anyone, but since International Paper Company and the Johns Manville Company apparently were the only two mills which used pulpwood in that area, the market was somewhat limited.
In some instances Mullins Parker owned or purchased the timber rights on tracts from which pulpwood was produced, but ordinarily the pulpwood producers themselves made their own arrangements with the landowner for the pulpwood. It was estimated by Mullins Parker that about 30 percent of the pulpwood which they sold to International Paper Company was produced from lands on which that firm had the timber rights, while about 70 percent of the pulpwood which was sold to International Paper Company was produced from lands on which Mullins Parker had no rights at all.
Bryant, the plaintiff in this suit, was a pulpwood producer during the year 1959. He owned three or four trucks and all of the equipment which he needed in order to produce pulpwood. He employed and paid his own crews and he alone supervised and directed his crews in cutting or producing pulpwood. During the week beginning May 25, 1959, Bryant had planned to cut timber from a tract of land owned by the Blanche Estate. Bryant had made his own arrangements with the owners of that tract for the timber, and Mullins Parker had no interest in the timber located on that land. Bryant agreed with the owners of the Blanche property that he would cut and remove cottonwood trees as well as other types of timber from that land. He planned to sell as much of the timber from that tract as he could to International Paper Company, through Mullins Parker, but since that Company usually would not accept cottonwood, he intended to sell at least the cottonwood cut from the Blanche property to the Johns Manville Company or to any other purchaser who would buy it. Although Bryant at various times had cut pulpwood from lands on which Mullins Parker owned the timber rights, he was engaged exclusively in cutting from the Blanche property, on which he himself owned the timber, during the week in which the accident occurred.
In the past Bryant had delivered and sold pulpwood to both Johns Manville and to International Paper Company, although he testified that the great majority of the pulpwood which he produced was delivered to International Paper Company because he preferred to sell to it. According to his testimony, the reason why he preferred to sell to the International Paper Company was that employees of that Company unloaded his truck when the delivery was made, whereas it was necessary for him to unload the truck himself when he delivered to Johns Manville.
Bryant cut and hauled pulpwood from the Blanche property on Monday, May 25, 1959. On the following day, May 26, however, he made no attempt to go into the woods and cut timber because two of his power driven saws had broken down and had to be repaired. On Tuesday morning, May 26, Bryant took one of his saws to the Mullins Parker establishment in Natchez for the purpose of having it repaired. He then returned to his home and began repairing the other saw. About 4:00 or 5:00 o'clock that afternoon he found that he needed some parts for the second saw, and he thereupon set out in his pickup truck to go to Natchez to purchase the needed parts. In route to Natchez for that purpose he was involved in a motor vehicle collision which caused the injuries which form the basis for this compensation claim. Bryant acknowledges that Mullins Parker was under no obligation to repair either of these saws, and Bryant intended and expected to pay Mullins Parker for any repair work done to them or for parts purchased for them.
On these facts, the trial judge found that although Mullins Parker has not exercised supervision and control over Bryant and his operations, it had the right to do so, and accordingly, he concluded that Bryant was an employee of Mullins Parker and was covered by the Workmen's Compensation Act. In arriving at that conclusion the trial court relied on the case of Collins v. Smith, La. App. 2 Cir., 13 So.2d 72.
We feel that Collins v. Smith, supra, is not applicable because there the decedent was merely employed to haul pulpwood, which was owned by his employer and which had already been cut and stacked, from one location to another. The employer clearly had the right to direct these hauling operations.
We find no distinction between the issues presented in this case and those presented in Taylor v. Employers Mutual Liability Insurance Company, supra ( 58 So.2d 206); Garner v. Southern Pulpwood Insurance Co., supra ( 149 So.2d 157); and Cerie v. Malone, supra ( 125 So.2d 254). In each of the cited cases, where the facts were almost identical with those presented here, it was determined that only a vendor-vendee relationship existed between the parties, and accordingly, that there was no coverage under the Workmen's Compensation Act.
In the Taylor case, supra, the decedent purchased the standing timber from the landowner, felled the trees and hauled them to the mill site of the defendant-lumber company in his truck. If the logs were accepted the defendant paid the stumpage charge directly to the landowner and it paid the balance due for the load to the decedent. As in the instant suit, "there was an understanding as to the length and the diameter of the logs to be accepted and the price per thousand feet log measure to be paid for each species of timber," but title to the logs remained in the decedent until accepted, and any logs rejected by the mill remained the property of decedent. The defendant exercised no supervision over the decedent in his logging operations, and the decedent was free to sell his logs to some other purchaser without incurring any obligation to the lumber company. Under those circumstances our Supreme Court held that "the relation between the deceased and the defendant lumber company was simply that of vendor and vendee." The same circumstances, we think, exist in the instant suit.
Similar facts were presented in the Garner and Cerie cases, and in each of those suits we held that the relationship between the parties was merely that of vendor and vendee. In Cerie v. Malone, supra, we said:
"* * * Suffice it to say that we are impressed with the validity of defendant's contention that the relationship between himself and Harmon was that of vendor-vendee. There was no control by defendant of Harmon nor a devious manner of employment so as to cast doubt on the relationship. Harmon used his own equipment; hired his own workers; obtained pulpwood wherever he chose; and was not required to sell to defendant. The mere fact that defendant loaned Harmon money to buy a motor which was to be repaid in pulpwood does not negate the vendor-vendee relationship. Under these circumstances there is no principal-contractor relationship." (Emphasis added, 125 So.2d 256.)
Other cases which we think are pertinent and which we have considered are: Dick v. Gravel Logging Co., 152 La. 933, 95 So. 99; Stevens v. Mitchell, 234 La. 977, 102 So.2d 237; Kline v. Dawson, 230 La. 901, 89 So.2d 385; Dunn v. Southern Pulpwood Insurance Company, supra ( 141 So.2d 882); Benton v. Pope, supra ( 130 So.2d 724); Smith v. American Employers Insurance Company, La. App. 2 Cir., 130 So.2d 494; Hatten v. Olin Mathieson Chemical Corp., La. App. 2 Cir., 112 So.2d 135; Phillips v. Consolidated Underwriters, La. App. 2 Cir., 108 So.2d 251 (Cert. denied); Smith v. Crossett Lumber Co., La. App. 2 Cir., 72 So.2d 895; Deason v. Coal Operators Casualty Co., La. App. 2 Cir., 43 So.2d 630; Williams v. George, La. App. 2 Cir., 15 So.2d 823; Owers v. Louisiana Long Leaf Lumber Co., La. App. 1 Cir., 14 So.2d 275. We also have considered the comments of Professor Wex S. Malone in XIX Louisiana Law Review, 342, and in his excellent treatise, "Louisiana Workmen's Compensation Law and Practice," Chapters 3 and 4.
The evidence in the instant suit establishes that Mullins Parker exercised no supervision or control over Bryant in the cutting or production of pulpwood from the Blanche tract. Bryant himself made arrangements with the owners of that tract to cut the timber. He was under no obligation to deliver or to sell it to Mullins Parker, but on the contrary, he was free to dispose of the timber which he cut in any manner he saw fit. Bryant, in fact, had agreed with the landowner to cut and remove several types of wood from the land, some of which would not be purchased by Mullins Parker, so he planned to sell at least a portion of the wood produced from that tract to other purchasers. He would not be liable to Mullins Parker if he failed to cut or to deliver to them any wood from that tract, and there would be no liability on the part of Mullins Parker in the event a load of wood cut by him was rejected by the Paper Company. The title or ownership of the load of wood cut from the Blanche tract remained in plaintiff until it was sold by him. Under those circumstances we think the relationship which existed between Bryant and Mullins Parker was simply that of vendor and vendee.
Plaintiff argues, however, that in this case the arrangements between Mullins Parker and Bryant were such that the former had the right to control Bryant's operations, because Mullins Parker, as the exclusive suppliers of pulpwood to International Paper Company, had the right and power to stop plaintiff from delivering pulpwood to that plant by refusing to issue purchase order tickets to him. It is argued that the relationship of employer and employee exists where one party has the right to exercise control or supervision over the other, even though he may not exercise that right.
We agree that in determining whether an employer-employee relationship exists, one of the important factors to consider is whether the alleged employer has the right to exercise control or supervision over the operations of the other party. In Hatten v. Olin Mathieson Chemical Corp., supra, our brothers of the Second Circuit said:
"The right to exercise control or supervision over an operation is a factor to be considered in establishing the relationship of the parties involved. The fact that the employer did not exercise control or supervision is not a true test in determining one cutting pulpwood and delivering it by his truck was or was not an employee. The true test is whether the employer has the right to exercise control and/or supervision over the operations. Where such right to control or supervision existed over operations in cases of the character of the present one, the relation of employer and employee arises. * * *" (Emphasis added, 112 So.2d 139.)
And, in Amyx v. Henry Hall, 227 La. 364, 79 So.2d 483, our Supreme Court said:
"It is well settled by our jurisprudence that besides other factors, the most important test in determining 'whether a person employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved by the employer.' It is also well settled that whether the employer 'actually exercises control or supervision' over the movements and the services rendered by the employee, such a fact is of no great moment, the 'important question is whether, from the nature of the relationship, he had the right to do so.'" (79 So.2d 486.)
In the instant suit, however, we find that Mullins Parker did not have the right to exercise control or supervision over the operations of Bryant. It is true that it had the exclusive right to supply pulpwood to the International Paper Company, and that it could at any time refuse to issue any more purchase orders or tickets to Bryant, or to any other pulpwood producer, without incurring liability. In our opinion, however, the mere fact that Mullins Parker had the right to quit purchasing pulpwood from Bryant does not constitute the exercise of such control over Bryant's operations as to make him an employee of Mullins Parker within the meaning of the workmen's compensation law. Actually, there was another market for pulpwood in that area besides International Paper Company. But, even if that Company was the sole user or consumer of pulpwood, and Mullins Parker had the exclusive right to supply it, we feel that that circumstance would not give Mullins Parker the type of control over Bryant's operations sufficient to establish an employer-employee relationship between them. If that were true, then it may follow that every rice buyer would have to be classified as the employer of a farmer from whom he regularly purchases rice, simply because he has the right and power to discontinue buying rice from that farmer.
Plaintiff contends, alternatively, that he was an independent contractor for Mullins Parker, that a substantial part of his work time was spent in manual labor carrying out the terms of that contract, and accordingly, that under the provisions of LSA-R.S. 23:1021(6) he is covered by the Louisiana Workmen's Compensation Act. There is no question but that a substantial part of Bryant's work time was spent in manual labor in cutting and hauling the pulpwood which he delivered to the Paper Company for the account of Mullins Parker.
LSA-R.S. 23:1021(6), as amended in 1948, provides:
"'Independent Contractor' means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter."
In Shelton v. Barber Brothers Company, La. App. 1 Cir., 94 So.2d 489, the First Circuit Court of Appeal, in distinguishing between an employee and an independent contractor, said:
"As contrasted to an employee, an independent contractor is one independent in business who contracts to perform a specified piece of work for another for a specified price, without being subject in the performance of the contract to the control and direction of his employer except as to the result contracted for; which contract is not subject to termination or discontinuance at the will of either party without a corresponding liability for its breach. * *" (Emphasis added, 94 So.2d 490.)
And, in Amyx v. Henry Hall, supra ( 79 So.2d 483), the Supreme Court said:
"* * * A contractee-independent contractor relationship presupposes a contract between the parties. It likewise presupposes the independent nature of his business, and is not exclusive as to the means whereby it is accomplished. It should appear that the contract calls for a specific piecework as a unit to be done according to his own methods, without being subject to the control and direction, in the performance of the service, of his employer, except as to the result of the services to be rendered. It must also appear that a specified price for the overall undertaking is agreed upon; that its duration is for a specified time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach." (Emphasis added, 79 So.2d 486.)
We have already pointed out that in the instant suit no contract of any kind was entered into between Bryant and Mullins Parker. Bryant did not obligate himself to cut or deliver any specific quantity of pulpwood, or to accomplish a specified result either as a unit or as a whole. Even though he received tickets from Mullins Parker setting out the type of pulpwood which the paper mill would purchase, he incurred no obligation to anyone if he chose not to deliver any wood at all. Neither was there any liability on the part of Mullins Parker if it should have failed or refused to issue purchase orders or tickets to Bryant. In our opinion, therefore, no contractual relationship existed between Mullins Parker and Bryant, and accordingly, we find no merit in plaintiff's argument that he was an independent contractor for Mullins Parker.
Finally, plaintiff contends that the fact that Mullins Parker paid directly to the landowner the stumpage charge due on each load of wood hauled by Bryant indicates that an employer-employee, or at least a principal-independent contractor, relationship existed between the parties.
The fact that the purchaser of pulpwood deducts the stumpage price from the amount due the producer, and pays the sum due for stumpage directly to the landowner, does not make the producer an independent contractor or an employee of the purchaser within the meaning of the Louisiana Workmen's Compensation Act. Taylor v. Employers Mutual Liability Insurance Company, supra; Garner v. Southern Pulpwood Insurance Co., supra; and Benton v. Pope, supra.
We are aware of the fact that in a number of cases involving the harvesting of pulpwood the courts of this State have held that an employer-employee, or a principal-independent contractor, relationship existed between the buyer and the producer of that wood. See Stevens v. Mitchell, supra ( 102 So.2d 237); Jones v. Hennessy, 232 La. 786, 95 So.2d 312; and Kline v. Dawson, supra ( 89 So.2d 385). All of those cases are factually distinguishable from the instant suit, however, as is clearly shown by our discussion of each such case in the recent case of Redding v. Cade, La. App. 3 Cir., 158 So.2d 880. The last-cited case, Redding v. Cade, also is not applicable because of important differences in facts. In that case the purchaser, Continental Can Company, owned the land on which the timber was cut. It allegedly sold to Cade certain trees which were marked by Continental. These trees were cut by Cade and hauled to Continental's paper plant where they were immediately "re-purchased" by Continental for a higher price, the difference in price being Cade's earnings for cutting the timber. Continental specifically retained the right to inspect the cutting operations and Cade was required to remove the trees "in one continuous operation." Under those circumstances we found that a principal-independent contractor relationship existed between Continental and Cade. In the instant suit, of course, the purchaser did not own the timber which was cut and the producer was under no obligation to the eventual purchaser to cut and remove any pulpwood at all.
There is nothing in the evidence in the instant suit which causes us to view with suspicion the business relations which existed between Mullins Parker and Bryant or between Mullins Parker and the landowner. We find nothing to indicate that a middleman or intermediary has been interjected, or that any other device has been employed, for the purpose of circumventing the compensation law contrary to the purpose and intent of the Legislature in adopting it. Mullins Parker did not deduct any amount from the payments made to Bryant for pulpwood as premiums for workmen's compensation insurance. No representation had been made to Bryant that he was covered by workmen's compensation insurance, and there is no indication that Bryant was heavily indebted to Mullins Parker so that as a practical matter the latter controlled his operations. Considering all of the evidence in this case, we conclude that the relationship between Bryant and Mullins Parker was solely that of vendor and vendee, and that the trial judge erred in holding that he was an employee within the meaning of the Compensation Act.
For the reasons herein set out, the judgment appealed from is reversed, and judgment is hereby rendered in favor of defendant, and against plaintiff and intervenor, rejecting the demands of said plaintiff and intervenor at their costs. The expert witness fee of Dr. Jack H. Phillips is fixed at $50.00 and that amount, together with the sum of $21.90 being the court reporter's fee for the taking of his deposition, is allowed and taxed as costs. The costs of this appeal are assessed to plaintiff-appellee.
Reversed and rendered.
The writer respectfully dissents from the reversal of the trial court judgment.
The facts are virtually undisputed, and the appeal presents purely a question of law, which the trial court resolved correctly in the writer's opinion. As the writer shall set forth in more detail, the trial court correctly characterized as a matter of law the relationship between the plaintiff Bryant and Mullins Parker as that of employer-employee, or principal-contractor, instead of "vendor-purchaser" as held by this court's majority.
The evidence shows that in fact Mullins Parker had the exclusive control over the plaintiff Bryant's economic operations, which were determined each week in advance by the purchase orders given to Bryant by Mullins Parker on the preceding Saturday: these alone determined the extent and nature of Bryant's pulpwood activities during the following week. Further, in performing his work to fulfill these purchase orders each week, Bryant was not cutting and hauling pulpwood for him to sell himself to the International Paper Company; he was doing so to fulfill the Mullins Parker purchase-order with International Paper, by which Mullins Parker had agreed to supply so much pulpwood during the coming week to the International Paper plant.
In short, Bryant was not a seller of wood; he was either an employee or independent contractor engaged by Mullins Parker to supply pulpwood in fulfillment of its contract with the International Paper Company. As such, he is entitled to compensation when injured in the performance of duties incidental to his work for Mullins Parker.
A distinction immaterial in this case, as the majority notes, because a substantial part of Bryant's duties were manual labor, so that he is entitled to compensation, if classified either as an employee or as a contractor.
This is exactly what the Second Circuit held way back in 1943 in Collins v. Smith, 13 So.2d 72, a case never overruled and subsequently cited with favor over the years. The trial court properly followed Collins in awarding compensation herein. The present majority's holding is in direct conflict with Collins (among other cases to be cited), presumably on that account alone entitling the plaintiff as of right to review by the Supreme Court to resolve this conflict between the circuits. Art. VII, Section 11, LSA-Constitution of 1921.
The Collins case concerned an identical arrangement between the same International Paper Company and a supplier, Edgar B. Smith, by which Smith was given the exclusive right to deliver to it at a fixed price pulpwood within a specified territory, similar to Mullins Parker's arrangement herein with International Paper. The decedent Collins was killed while performing work for a subcontractor, W.F. Smith, who occupied a position identical to that of the plaintiff Bryant herein. W.F. Smith had purchased the stumpage from the landowner, just as Bryant did in this case. Nevertheless both Smiths were held liable in compensation for the decedent's death, even though the latter owned his own equipment, hired and paid his own helpers, was free to quit if and when he chose, or to haul as much wood as he desired or not, etc.
In holding both Smiths liable the court noted: "[i]t is true, as argued, that neither of the Smiths exercised control or supervision over deceased's operations, but this is not the true test to determine whether he was or was not an employee. The true test is whether the employer has the right to exercise control and/or supervision over the operations." 13 So.2d 73. It is to be noted that Edgar B. Smith — the exclusive supplier occupying the status of Mullins Parker herein — could not have been held liable if he had been a "vendor" as argued here, a holding of the Collins case which the present majority overlooks.
The Collins holding has been adhered to over the years. In comparable situations, the subsequent jurisprudence has consistently pierced through paper "buyer-seller" relationships to hold that the so-called "buyer" who actually directs and controls the economic operations of the supplier is liable in compensation to those injured in the course of such operations. The "buyer" is regarded as actually paying for the performance of services in the processing of the timber products for his benefit, in addition to paying for the raw timber, when the legal mechanisms or actual factual relationship assure that the so-called "seller's" operations will be directed primarily to fulfill the "buyer's" economic needs rather than being a processing of products for sale on the open market. Stevens v. Mitchell, 234 La. 977, 102 So.2d 237; Jones v. Hennessey, 232 La. 786, 95 So.2d 312; Kline v. Dawson, 230 La. 901, 89 So.2d 385; Redding v. Cade, La. App. 3 Cir., 158 So.2d 880; Hatten v. Olin Mathieson Chemical Corp., La. App. 2 Cir., 112 So.2d 135, 136; Hebert v. Gates, La. App. 1 Cir., 50 So.2d 859; Deason v. Coal Operators Casualty Co., La. App. 2 Cir., 43 So.2d 630.
Similarly, in the ice cream vendor line of cases, the courts have adopted a realistic test of compensation liability. They have held the prime controller of the economic operations liable in compensation for those injured therein, piercing through paper arrangements by which attempts have been made to disguise practical economic control by a theoretical buyer-seller relationship. As stated in Sampson v. Borden Company, La. App. 1 Cir., 92 So.2d 152, 153, certiorari denied, summarizing this line of cases: "In deciding whether the alleged enterpriser is indeed an independent merchant retailing products purchased from a favored supplier, or instead in reality an employee working on a commission basis, the courts have uniformly examined the total economic relationship between the parties. Indicia which individually might not indicate other than a customer relationship, may in combination present a picture of practical economic control and direction by the supplier so as to constitute him — for purposes of workmen's compensation, at least — as the master or employer of the other. * * * [Citations omitted.]"
As Professor Malone has observed in his outstanding treatise, Louisiana Workmen's Compensation Law (1962 pocket part, pp. 39-40): "In practical effect the intermediary is no more than a contractor who is paid for severing and hauling the timber. * * In fact our courts have recognized that one may be the employee of another who has sold him goods when the seller controls the buyer's conduct in the reselling of the same goods." (Italics mine.)
In denying workmen's compensation and in holding that there was a buyer-seller relationship, my brothers of the majority have relied upon Taylor v. Employers Mutual Liability Ins. Co., 220 La. 995, 58 So.2d 206, Garner v. Southern Pulpwood Insurance Co., La. App. 3 Cir., 149 So.2d 157, and Cerie v. Malone, La. App. 3 Cir., 125 So.2d 254. In my opinion, these cases are factually distinguishable and are not controlling herein. These concern instances where a timber product purchaser obtained timber rights in his own interest, then cut and hauled them and sold them on an open market arrangement to the buyer. In these instances, the buyer was held free of compensation liability because of his lack of economic control over the operations of the timber producer.
Aside from other factors of economic control to be listed below, the distinguishing feature in the present case, of course, is that the producer Bryant's pulpwood cutting operations were determined in advance each week by orders received by him from Mullins Parker. The producer Bryant here was not processing the timber products for sale on the open market — he was processing them pursuant to a pre-existing order from Mullins Parker, and in order to satisfy Mullins Parker's contractual obligation to deliver so many cords of pulpwood that week to the International Paper Company. While engaged in fulfilling a Mullins Parker order, as the uncontradicted evidence shows, Bryant's economic efforts were exclusively employed in producing pulpwood to satisfy the purchase-order (the "tickets") received by him the preceding Saturday from Mullins Parker.
The producer Bryant may have been theoretically free, if he wished, to refuse to fill the share of the Mullins Parker purchase order allotted to him that week — that is, the number of "tickets" allotted him by Mullins Parker, representing so many loads of pulpwood he was to deliver to International Paper for the account of Mullins Parker. However, if he diverted the pulpwood he was cutting for Mullins Parker to another source (and the evidence indicates he never did so in fact), he was subject to not receiving further steady work from Mullins Parker. (In fact, the plaintiff had worked exclusively for Mullins Parker since 1952, except for a few short periods when the International Paper Plant had shut down, when by pre-arrangement with Mullins Parker he had cut willow or cottonwood for Johns-Manville.)
Bryant's alleged freedom not to deliver wood ordered from him by Mullins Parker to satisfy that firm's purchase order with International Paper Company, amounted to the same freedom that an hourly employee for Ford Motor Company has to fail to report to work the following day. He is free to do so, but he may lose his job and he will lose his earnings for the period — and as a matter of economic necessity he in fact does not exercise this theoretical freedom.
Bryant's theoretical freedom to quit working for Mullins Parker does not, while he is performing work for Mullins Parker, convert him from an employee or contractor into an independent retailer. So long as his economic operations are conditioned on advance orders given to him by Mullins Parker in order to satisfy that firm's contract with International Paper, and so long as he is engaged in duties incidental to the performance of this work for Mullins Parker, Bryant is performing services for Mullins Parker for purposes of the Louisiana compensation act, and he is thus entitled to compensation benefits when, as here, injured in the duties incidental to the performance of work for Mullins Parker.
Bryant was not injured when cutting or delivering pulpwood for Mullins Parker. However, he was injured in connection with saw repairs being performed in connection with the pulpwood operations conducted for Mullins Parker; the injury thus arises out of and is incidental to the work for Mullins Parker, since it is the result of some risk to which he was subjected as a result of his employment and was reasonably within the scope of things contemplated by the employment. Edwards v. Louisiana Forestry Commission, 221 La. 818, 60 So.2d 449; Kern v. Southport Mull, 174 La. 432, 41 So. 19; Shird v. Maricle, La. App. 3 Cir., 156 So.2d 476; Willis v. Cloud, La. App. 3 Cir., 151 So.2d 379; Malone, Louisiana Workmen's Compensation Law (1951), Chapter 9, especially Sections 192, 196.
I can see little practical distinction between the present case and the economic picture presented by the Kline, Redding, Hatten, and Hebert cases, cited above. In those, the defendant owned the timber, which he "sold" to the producer, who then "resold" it after he had processed it. The courts there held that in actual economic fact the producer was being paid for his services in processing the timber products, so that there was compensation liability on the part of the principal procuring his processing activities.
In the present instance, the plaintiff Bryant was engaged solely in producing pulpwood for the account of Mullins Parker at the time of the accident, in accordance with orders received in advance each week from Mullins Parker which determined that in fact the pulpwood he cut was to be delivered solely for the account of Mullins Parker, rather than to be produced for sale on the open market. Just as in the cited cases the timber the producer was processing was in reality (despite its paper title and a theoretical freedom to deliver it elsewhere) for the account of the principal, just so in the instant case the pulpwood here was being produced by Bryant in reality (despite its paper title and a theoretical freedom to deliver it elsewhere) for the account of Mullins Parker. As in the cited Hatten case, the circumstance that the principal had the right to terminate the producer's operations at will is extremely indicative of factual economic control inconsistent with an open-market buyer-seller relationship.
Summary in more detail of the evidence.
What we have emphasized previously in this dissent is the broad factual picture of economic control herein, and its consequences under the prior compensation jurisprudence. In order to understand the interrelationship between Bryant and Mullins Parker more completely, however, it may be of interest to examine in detail the facts relating thereto.
Mullins Parker was the exclusive supplier of pulpwood to the International Paper plant from the four adjacent parishes in Louisiana and the seven adjacent counties in Mississippi. Without a Mullins Parker ticket, this plant did not accept delivery of pulpwood from a producer. There was no other market for pine, gum, and hardwood pulpwood in the area. (There was a market for cottonwood and willow at the Johns-Mansville masonite plant, to which such woods could be sold by a producer, if he could acquire "tickets" for that plant.)
As a matter of practical economic fact, Mullins Parker held the power of economic life or death over the 15-20 pulpwood producers with which it had entered into standing arrangements to supply its weekly pulpwood needs. Without Mullins Parker orders, there was no other market to produce pine, gum, and hardwood pulpwood. Further, the producers' economic operations during each week were dictated in advance by the number of tickets allotted each week to each by Mullins Parker.
This circumstance alone, as indicated in the above-cited Collins case upon which the trial court relied, amounted to such practical economic control over the producers, as to make Mullins Parker liable in compensation to a producer or his employees injured in the performance of duties incidental to the completion of these advance orders given by Mullins Parker to cut pulpwood for its account.
Additionally, however, there are several other indicia of the economic control in fact exercised by Mullins Parker over Bryant and the other producers favored by it with weekly pulpwood orders. Taking all of these indicia into consideration, it becomes plain beyond a doubt that the relationship between Mullins Parker and Bryant was far more integrated than could be consistent with an open market buyer-purchaser.
At the risk of some repetition, and in order to set forth the total economic picture more fully, I shall set forth the following indicia of close economic control exercised by Mullins Parker over Bryant:
1. Mullins Parker determined if and how much Bryant worked each week.
As previously noted, Bryant's economic operations were in fact determined each week by the number of tickets allotted him by Mullins Parker, each representing a load of pulpwood to be delivered to the International Paper plant. There was in fact no other market for the pine-gum and hardwood pulpwood. Without such a ticket from Mullins Parker, there was no use in a producer cutting any such pulpwood during the following week.
Although as a senior producer Bryant usually received all the tickets he requested, this was because of his work record with Mullins Parker. As Mrs. Bryant stated, "The more you haul, the more you were allowed to haul, well as we hauled a good deal at the time, and that way we were allowed to get more tickets than someone else." Tr. 102.
2. Bryant cut pulpwood for Mullins Parker to fill that firm's order with International Paper, not for sale himself on the open market.
In the words of one of the Mullins Parker partners, the weekly tickets allotted each week were actually "a purchase order, instruction from R.H. Parker to International Paper Company to accept this load of wood for our [Mullins Parker] account." Tr. 133. By the advance order received from Mullins Parker, the pulpwood which Bryant was cutting each week was not for sale on the open market; it was to fulfill the contract between Mullins Parker and International Paper Company calling for the supplying of so much pulpwood that week.
Although Bryant may theoretically have been free to bring the pulpwood to some other source (if he did not fear being fired from his long term arrangement with Mullins Parker), as an actual matter of economic fact, as he stated, "There's no where else to deliver it", Tr. 57, than to the International Paper plant via the Mullins Parker ticket
3. Mullins Parker determined where Bryant worked.
Prior to working on the Blanche tract, Bryant had been working for about a year on the Fisher tract, on which the stumpage was owned by Mullins Parker and on which the work areas were assigned by Mullins Parker. Due to bad weather it was necessary to cease operations on the Fisher tract. At that time, Thompson, the Mullins Parker woods supervisor, suggested to Bryant that he contact the Blanche proprietor to secure the pulpwood there. Although technically it was Bryant who closed the deal for the pulpwood, actually the acquisition resulted from prior negotiations by Thompson ascertaining the availability of the wood for Mullins Parker; and in fact the landowner entered into the transaction in reliance upon the fact that the pulpwood was being produced for the account of Mullins Parker. See testimony of land-owner at 121-123; see testimony of Thompson at 171-172, 175; see testimony of Bryant, Tr. 75-76.
Bryant may have been free in theory to disregard suggestions of Thompson as to where to conduct his pulpwood operations, but as a matter of practical economic fact he followed the suggestions of this Mullins Parker official, who spent approximately two to three days per week in Louisiana locating pulpwood and checking on the pulpwood operations of the Mullins Parker producers.
4. The relationship between Bryant and Mullins Parker was a continuing one, which could be terminated at will by Mullins Parker (as well as by Bryant).
The uncontradicted evidence shows that Bryant had been working as a Mullins Parker producer since 1952. He had worked for them exclusively, except for a few very short periods when the International Paper plant shut down. In these instances, by pre-arrangement with Mullins Parker and with their assistance in securing "tickets" for the Johns-Manville plant, Bryant cut cottonwood and willow for this masonite plant, when there was a market for it.
On a few rare occasions (the last of which had been three or four years before, Tr. 52), after cutting the pine and gum from a landowner's tract for Mullins Parker, the willow and cottonwood was then cut for Johns-Manville in order to satisfy the landowner and generally as a part of the arrangement made by Mullins Parker with him.
In the case of the Blanche tract on which Bryant was working at the time of the accident, he did intend eventually to cut the cottonwood and willow for Johns-Manville if International Paper Company would not take it. However, at the time of the accident, his operations were exclusively conducted to fulfill the Mullins Parker order to supply gum and pine pulpwood to the International Paper Company.
The Mullins Parker partners denied each agreement between them and each producer with which they entered into a standing long-term arrangement to supply the Mullins Parker pulpwood needs, contemplated that such producer should work exclusively for Mullins Parker during the period of the agreement. In fact, however, as Bryant and another pulpwood producer testified without contradiction, the Mullins Parker pulpwood producers regarded themselves as being obligated to work exclusively for Mullins Parker during the period of their standing arrangements with such firm.
5. Mullins Parker fixed the maximum stumpage price of $3.00 to be paid the landowner.
See Bryant's testimony, Tr. 78, 92, Tr. 250. The maximum stumpage price was fixed to prevent the price of pulpwood from increasing in the area. Mullins Parker therefore did not permit its pulpwood producers to agree to pay stumpage to the landowner in excess of $3.00 per cord. Although a Mullins Parker partner disagreed that this was a policy of the firm, he did admit that as a matter of fact the pulpwood producers do not pay over a certain amount for stumpage. Tr. 135. (Of course, if Mullins Parker were really buying on the open market, it should have been immaterial to them how much of the gross price paid by them was paid by the producer as stumpage to the landowner.)
6. Stumpage was always deducted from Bryant's deliveries of pulpwood and paid directly to the landowner.
Bryant stated that such was a matter of Mullins Parker policy. The partners denied this. In fact, however, in every instance Bryant's pulpwood operations were handled in this manner, under Bryant's understanding that this was a required Mullins Parker policy. Bryant indicated as one reason for this policy that Mullins Parker had once paid out stumpage a second time to a landowner, when the landowner's stumpage had been improperly retained by an intermediary through whom it was supposed to be paid to the landowner.
7. Mullins Parker in fact financed all of Bryant's operations.
Mullins Parker not only gave Bryant the orders each week for the number of loads of pulpwood he was to produce and deliver. It also maintained a general store and commissary and a running account by which it financed all of Bryant's current operations, including the furnishing of repairs and parts.
In this regard, the Bryant ledger sheet with Mullins Parker is extremely instructive. See Exhibit D-1, Tr. 181. This shows that Bryant regularly drew sums in round amounts ($150 to $200, etc.) and also regularly charged various repairs and parts performed for or sold to him at the Mullins Parker commissary. Also charged against his account, for instance, were severance taxes, accident insurance, interest upon his bank note, etc. Credited against these debits were the loads of pulpwood delivered weekly, which were credited in amounts that did not necessarily correspond even approximately with the weekly advances.
Bryant drew advances from Mullins Parker for his living expenses and his own payroll. In all other respects, however, Mullins Parker conducted his bookkeeping and handled all the proceeds and expenses of his operations for him in its ledger sheet, including the payment of severance taxes, insurance, and interest due by Bryant on his business operations. Bryant's function was simply to cut and deliver pulpwood to the International Paper Company for the Mullins Parker account, and to receive in turn credit from Mullins Parker on his ledger sheet with such firm for timber delivered to International Paper for said partnership.
Bryant was "free" to have his repairs made and to purchase his supplies from sources other than the Mullins Parker commissary in the same sense that a pauper is free to spend a riotous evening at the Blue Room of the Roosevelt Hotel. He can in theory, but as a matter of fact his credit and the practical realities of economic life do not permit him to do so.
8. Bryant was consistently indebted to Mullins Parker.
In the first place, while it is true that Mullins Parker did not finance directly Bryant's equipment purchases, nevertheless such partnership was the endorser on a fourteen thousand dollar note owed by him to the bank for such purchases. See testimony of Mullins Parker partner, p. 163. When the interest became due, Mullins Parker simply paid same and charged the amount to Bryant's account with it. Tr. 163, 181.
In addition to this large outstanding note, which would become immediately due if Mullins Parker failed to pay the interest or failed to re-endorse it at maturity, Bryant was consistently indebted on his open running current account for between one thousand and fifteen hundred dollars, representing the balance of advances, repairs, equipment, interest, and insurance paid by Mullins Parker in excess of the amounts credited for pulpwood delivered. See ledger sheet, Exhibit D-1, Tr. 181.
The Supreme Court has already noted the control exercisable over a pulpwood producer by reason of a large indebtedness, by reason of which the principal in fact directs the producer's operations and is not an open market purchaser from him. Jones v. Hennessey, 232 La. 786, 95 So.2d 312.
9. Mullins Parker required Bryant to report to it regularly precise payroll information.
See Mrs. Bryant's testimony, Tr. 108-109; see partner's testimony, Tr. 165, and Exhibit P-5 at Tr. 241 (miscalled P-7 and P-8 in testimony, but identified by testimony as the same as the exhibit marked in evidence as P-5).
These report forms, required by Mullins Parker of Bryant for each workweek, were to show each of Bryant's employees' name, address, signature, and social security number, and the daily number of produced pieces and the daily number of hours worked by each such employee. Although a Mullins Parker partner stated that producers such as Bryant were only required to list the employees' names, addresses, and birthdates, the forms themselves in evidence indicate that the more complete information above-listed was required. And in fact, as is conceded, this complete payroll information was indeed regularly given by Bryant to Mullins Parker.
Summary.
Although perhaps most of the above indicia might individually be explained as being consistent with a vendor-vendee relationship, in combination the indicia point unmistakably to the complete economic control exercisable and exercised in fact by Mullins Parker over Bryant's operations. It is obvious that, in the face of this intertwined relationship and the actual economic control of Bryant by Mullins Parker, Bryant was not in fact a producer cutting and delivering pulpwood for sale on the open market: he was in fact either an employee or an independent contractor performing his operations in the interest of and under the practical economic control of Mullins Parker.
The circumstance that Bryant occasionally had cut wood for Johns-Manville in the past, and that he intended in the present instance to deliver to Johns-Manville any willow and cottonwood on the tract on which engaged during the period of the accident, if International Paper did not need it, are immaterial to decision of the present question; for the evidence reflects that during the period of the accident, the plaintiff Bryant was exclusively engaged in producing pulpwood for the account of Mullins Parker. (Had the injury occurred when Bryant was conducting operations solely for Johns-Manville, or both for Johns-Manville and Mullins Parker, then of course a different question would be presented.)
Viewing the identical contractual relationships between Mullins Parker and one of its producers in Mississippi, the Supreme Court of that state summarized as correctly characterizing the relationship the testimony of the producer that "Mullins, on Saturdays, gave orders for the following week, directing how many loads of wood should be hauled, what kind of timber should be cut, whether pine or gum, and how to cut the same; that the timber could not have been sold to anyone other than Mullins; and that Mullins had complete control over their operations." Mullins Parker v. Rucker, 237 Miss. 330, 114 So.2d 761, 763 (1959), affirming an award of compensation to one of the producer's sub-employees.
The legal effect of the total arrangement between the parties was that Mullins Parker had either employed or contracted with its pulpwood producers for them to cut and haul pulpwood at so much a cord, in fulfillment of the purchase order received by Mullins Parker from the International Paper Company each week at a higher amount per cord. (The difference represented the Mullins Parker gross profit on each load delivered.) The payment by Mullins Parker to the pulpwood producer was remuneration for the latter's services in cutting and hauling the pulpwood (as well as, of course, to compensate the landowner for the timber thus cut and hauled by the producer).
It was Mullins Parker which sold the pulpwood to the International Paper Company, not the pulpwood producer himself. Further, the arrangements between Mullins Parker and the producer did not constitute an open-market purchase of pulpwood from the producer by Mullins Parker, with a resale by it to International Paper; for the pulpwood was cut and delivered only as ordered in advance by Mullins Parker from the producer, and it was delivered solely for the account of Mullins Parker in fulfillment of the latter's contract with the International Paper Company.
"Independent Contractor" Status of Bryant.
An additional circumstance of error by the majority is its holding that Bryant was a vendor instead of an independent contractor simply because he was not obligated to cut any certain amount of pulpwood and because he did not incur any obligation if he failed to deliver any certain amount of pulpwood to Mullins Parker. In so holding, the majority relies on Amyx v. Henry Hall, 227 La. 364, 79 So.2d 483 and Shelton v. Barber Brothers Co., La. App. 1 Cir., 94 So.2d 489.
In the cited cases, of course, the question at issue was whether a relationship nominally designated as that of principal-contractor was in reality that of employer-employee because of the greater factual control in actuality exercised by the alleged "principal". The criteria mentioned by the majority actually are incidents used to determine whether or not in fact the actual control (the power to terminate, etc.) exercisable by the principal indicated that in reality an employee instead of a subcontractor status is occupied by the person responsible for performance of work for the alleged "principal".
Thus, the criteria relied upon by the majority, instead of showing that Bryant was a "vendor" rather than a subcontractor, under the jurisprudence actually tends to show that he was an employee instead of an independent contractor.
The Louisiana compensation act defines an "Independent Contractor" as a person who renders service "for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished * * *." LSA-R.S. 23:1021(6). While the greater economic control exercised by Mullins Parker over Bryant points more to an employee than a subcontractor relationship, nevertheless, at the very least, Bryant's relationship with Mullins Parker fits the above statutory definition: he cut pulpwood at so much a cord (per unit), under the control of Mullins Parker as to the results of his work (e.g., each stick not longer than six feet, broader than four inches, etc.)
One can search in vain the hundreds of independent contractor cases decided under the Louisiana workmen's compensation law without finding any Louisiana decision holding that a timber processor was not an independent contractor just because (as in the usual such relationship in the timber industry) he is paid only so much per cord delivered, without any liability upon him if he fails to deliver any specified number of cords.
On his point alone, if the present majority opinion stands, it will represent a great leap backward in our compensation jurisprudence, and it will create confusion where there is none now, inevitably causing further litigation as principals seek to debar from the benefits of the compensation act those whom the jurisprudence has regarded for over forty years as independent contractors, as well as their employees.
Conclusion.
For the foregoing reasons, I must respectfully dissent from the majority's reversal of the learned trial court, who correctly applied the previous jurisprudence to the present facts and properly awarded compensation to the crippled plaintiff.
On Application for Rehearing.
En Banc. Rehearing denied.
TATE, J., dissents from denial of rehearing.