Opinion
No. 5-3049
Supplemental Opinion on rehearing delivered February 3, 1964.
WORKMEN'S COMPENSATION — SUBCONTRACTORS — WEIGHT AND SUFFICIENCY OF EVIDENCE. — On rehearing the case of Huffstettler v. Lion Oil Co., 208 F.2d 549, held not to apply since it was not shown that the "D" Co. had any contract with a third person relative to the timber; accordingly, there was no evidence that "B", who cut the timber for "D" Co. was a subcontractor. Petition for rehearing denied.
In the petition for rehearing appellant insists that this case is controlled by Huffstettler v. Lion Oil Company, 208 F.2d 549. There it was held that the operator of a bulk plant who distributed Lion products to retailers who had contracted with Lion to sell that company's products, was not an independent contractor, but a subcontractor.
The decision in the Lion case was based on Hobbs Western Co. v. Craig, 209 Ark. 630, 192 S.W.2d 116, and Brothers v. Dierks, 217 Ark. 632, 232 S.W.2d 646. In the Hobbs Western case it was shown that Hobbs Western was getting out crossties for the Rock Island Railroad under a contract, and its was therefore held that one Lea, who was in turn getting out ties for Hobbs Western, was a subcontractor, not an independent contractor.
In Brothers v. Dierks it was shown that Dierks was getting out timber under a contract with the Federal Government, and therefore, the one that Dierks employed to remove the timber from the government land was a sub-contractor and not an independent contractor.
In the case at bar it is not shown that Dierks had any contract with a third person in connection with the timber, and therefore, it cannot be said that the one who is getting out the timber for Dierks is a subcontractor.
Petition for re-hearing is denied.
Original opinion delivered December 16, 1963, p. 376.