Summary
In McDonald v. Hall-Neely Lumber Co., 165 Miss. 143, 147 So. 315, Gray contracted with the lumber company to haul logs from a tract of timber to its mill.
Summary of this case from Moore and Chicago Mill Lbr. Co. v. PhillipsOpinion
No. 30463.
March 27, 1933.
1. MASTER AND SERVANT.
One is not "master" who is interested in ultimate result of work done as whole, but not in details of performance.
2. MASTER AND SERVANT.
"Independent contractor" is one rendering service in course of occupation representing will of employer only as to results, and not as to means of accomplishing it.
3. MASTER AND SERVANT.
Relation of master and servant as respects liability to third person does not exist unless master has substantial control over means and methods of carrying out contract.
4. AUTOMOBILES. One hauling, in his own truck, logs for lumber manufacturer at certain price per thousand feet, manufacturer having no control over manner, method, or means, held "independent contractor," for whose negligence in operation of truck manufacturer was not liable.
Evidence disclosed that contractor was public hauler and that contract was verbal and provided that compensation would be certain price per thousand feet for all logs hauled, that contractor was to haul no specified number of logs, and was to haul when it suited him, using his own truck, and furnishing his own help, that in making trips, he sometimes drove his truck, and sometimes he employed another to drive it, and that the only control lumber manufacturer had over contractor's operations was as to where to get logs and where to unload them at mill.
GRIFFITH and ETHRIDGE, JJ., dissenting.
APPEAL from circuit court of Union county. HON. T.E. PEGRAM, J.
Fred B. Smith, of Ripley, and Fontaine Adams, of Pontotoc, for appellant.
Generally the term independent contractor signifies one, who exercising an independent employment, contract to do a piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of the work, and who has the right to employ and direct the action of the workmen, independently of such employer and free from any superior authority in him to say how any specified work shall be done, or what the laborers shall do as it progresses; one who undertakes to produce a given result without being in any way controlled as to the method by which he obtains that result. The principal consideration in determining the question is the right to control the manner of doing the work.
31 Corpus Juris, pages 473, 474.
The three primary attributes of an independent contractor is that he is to do a specified piece of work without the control of his employer and in which his employer is only interested as to the result.
39 C.J., 315 and 316.
It is not the fact of actual interference with the control but the right to interfere that makes the difference between an independent contractor and a servant or agent. If the employer has the right of control, it is immaterial whether he actually exercises it.
39 C.J., page 316; Kelly v. Hoosac Lumber Company, 113A, 818.
If the employee is an independent contractor, employed to do a specific piece of work, without the control of his employer, and in which the employer is only interested in the result, then of course the employer has no right to step in at any time and terminate the work and discharge the employee.
Bristol, etc., Company v. Commonwealth Committee, 292 Ill. 16, 126 N.E. 599, 20 A.L.R. 761.
To constitute an "independent contractor" the contract itself must be one the performance of which will produce a certain understood and specified result — a contract which contemplates a definite beginning, continuance, and ending. A test of the relationship between the employer and the employee is the right of the employer under the contract to control the manner and continuance of the particular service and the final result. No single fact is more conclusive as to the effect of the contract of employment, perhaps, than the unrestricted right of the employer to end the particular service whenever he chooses, without regard to the final result of the work itself.
Cockran v. Rice, 26 S.D. 393, 128 N.W. 583, Ann. Cas. 1913B, 570.
If the employer had a right to terminate the contract at any given time, then this "gives him potential control" over the person employed and shows conclusively that the latter was not an independent contractor.
Evans v. Dare Lumber Company, 174 N.C. 31, 93 S.E. 430.
The mode of payment is not decisive.
N.O. N.E.R.R. Co. v. Reese, 61 Miss. 587; Atlantic Transportation Company v. Coneys, 82 Fed. 177; Franklin Coal Coke Company v. Industrial Commission, 296 Ill. 329, 129 N.E. 811; Hamilton v. Oklahoma Trading Company, 124 P. 38; Lewis v. Detroit Vetrified Brick Company, 164 Mich. 489, 129 N.W. 726; Pottorff v. Fidelity Coal Mine Company, 86 Kan. 774, 122 P. 120; Allen v. Bear Creek Coal Company, 43 Mont. 285, 115 P. 673; Tiffin v. McCormack, 34 Ohio St. 638.
Ten separate tests by which it can be determined whether one was a servant or independent contractor are:
Whether the principal master has the power to terminate the contract at will; whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; whether he furnishes the means and appliances for the work; whether he has control of the premises; whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; whether he has the right to prescribe and furnish the details of the kind and character of work to be done; whether he has the right to supervise and inspect the work during the course of the employment; whether he has the right to direct the details of the manner in which the work is to be done; whether he has the right to employ and discharge the sub-employees and to fix their compensation; and whether he is obliged to pay the wages of said employees.
Kisner v. Jackson, 132 So. 90; Natchez Coca Cola Bottling Co. v. Watson, 160 Miss. 175.
Our court laid down four tests as being conclusive of the relation. (1) The right of selecting the servant; (2) The right to discharge the servant; (3) The right to control the servant; (4) That he is not a master who is interested in the ultimate result of the work done as a whole but not in the details of its performance.
N.O.B.R.C. M. Railroad Co. v. Norwood, 62 Miss. 565.
The master must have control and direction, not only of the employment to which the contract relates, but to its details; and shall have the right to employ at will, and have proper cause to discharge those who serve him.
Louis Werner Saw Mill Company v. Northcutt, 134 So. 156.
Section 2240, Code of 1930, gives every employee of a sawmill operator a lien on all lumber and timber handled for his wages and under this section a hauler of timber is a servant and not an independent contractor.
Hinton Walker v. Pearson, 107 So. 275.
B.N. Knox, of New Albany, for appellee.
An independent contractor is one who renders service in the course of an occupation, respecting the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.
26 Cyc. 970; 31 C.J. 473; Callahan v. Rayburn, 110 Miss. 117; Till v. Fairbanks, 111 Miss. 123; Crescent Baking Co. v. Denton, 112 So. 21; Vicksburg Gas Co. v. Ferguson, 140 Miss. 543; Woods v. Clements, 114 Miss. 301; Norton v. Day Coal Co., 180 N.W. 907.
The important tests are whether the alleged "independent contractor is one who renders service in the course of an occupation representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished," and that he is not a master who has no "right to control the servant; and who is interested in the ultimate result of the work alone as a whole, but not in the details of the performance;" and "the main element required to constitute the relationship of master and servant is that the servant be subject to the control of the master in carrying on the business at the time of the injury.
Kisner v. Jackson, 132 So. 90.
Every agreement by which one person undertakes to produce certain results for another infers an implied condition that the latter shall have the right of refusing to accept the results finally obtained if they do not constitute a satisfactory execution of the agreement. This, however, does not destroy the independence of the contract if the right of the employer to exercise a certain measure of control goes no further than to enable him to secure the proper performance of the work.
Uppington v. N.Y., 165 N.Y. 222, 53 L.R.A. 550.
One who does teaming work for a person who merely directs him what to haul and where to, and leaves all details of the work to the employee, is a contractor and not a servant.
McCarthy v. Muir, 50 Ill. App. 510.
The owner of a team and his driver occupied a position of an independent contractor toward a person whose goods are hauled by the team under an agreed price per week, where the owner has exclusive care, control and management of the teams and all details as to route and speed are left to such owner and his driver.
Wadsworth Highland Company v. Foster, 48 N.E. 163.
When a person is engaged in doing a job or piece of work under an employment of contract which leaves to him the independent use of his own skilled judgment means and servants in the execution of it, he is not the agent or servant of the general employer.
Blake v. Ferris, 5 N.Y. 48, 55 Am. Dec. 304.
One whom the employer does not control has no right to control as to the method of means by which he produces the result contracted for is an independent contractor.
Gaul v. Detroit Journal Co., 158 N.W. 36, 191 Mich. 405.
The right to in some way manage, direct or control the servant in the work is one of the elements essential to the relation of master and servant.
Tilford case, 111 N.E. 645.
The relationship of master and servant does not exist unless there be the right to exercise control over methods and details, to direct how the result is to be obtained. The power to direct must go beyond what is to be done . . to telling how it is to be done.
Norton v. Day Coal Co., 180 N.W. 907.
If an employee is merely subject to the control or direction of the owner as to the result to be obtained, he is an independent contractor; if he is subject to the control of the employer as to the means to be employed, he is not an independent contractor.
Gulf Refining Company v. Wilkinson, 114 So. 503; Cooley on Torts, 646; Berg v. Bonsfield, 68 N.W. 45; Wabash R.R. Co. v. Farver, 11 Ind. 195; Bell v. Albert Lumber Co., 92 So. 350.
When the contract is in writing, the question of whether the person employed was an independent contractor or merely a servant is to be determined by the court as a matter of law.
Linnehan v. Rollins, 137 Miss. 123; Scott v. Springfield, 81 Mo. App. 312; Pioneer v. Hansen, 52 N.E. 17; Foster v. Chicago, 64 N.E. 322; Mayhew v. Sullivan, 76 Maine, 100.
Hinton Walker v. Pearson, 107 So. 275, does not say that an independent contractor, though he be a laborer, may not have a lien under the statute there construed.
Argued orally by Fred B. Smith, for appellant, and by B.N. Knox, for appellee.
Appellant brought this action in the circuit court of Union county against appellee to recover damages for personal injuries received by her, caused by a collision between a truck driven by B.J. Gray and an automobile in which she was traveling. At the conclusion of the evidence the court directed a verdict and judgment for appellee. From that judgment appellant prosecutes this appeal.
Whether the court erred in directing a verdict for appellee depends on whether Gray, the driver of the truck, was a servant of appellee or an independent contractor. The evidence out of which the question arose is undisputed. At the time of appellant's injuries and for some time prior thereto, appellee was engaged in the manufacture of lumber with its plant at New Albany in Union county. The logs which it manufactured into lumber were bought from various owners in Union and surrounding counties. It bought the merchantable timber on Porter Ray's land in Pontotoc county. Porter Ray cut the timber and hauled and piled the logs on the public highway leading to New Albany. Appellee contracted with Gray and two other persons to haul these logs to its mill, agreeing to pay them so much per thousand feet. While Gray was carrying out his part of the contract, the collision and injuries occurred. At the time of the collision, Gray's truck, driven by him, was loaded with some of the logs on its way to New Albany to appellee's plant. Gray was a public hauler in and around New Albany, and between that place and Memphis and other points. The contract between Gray and appellee was verbal. As stated, Gray's compensation was so much per thousand feet for all logs he hauled. He was to haul no specified number of logs, and was to haul when it suited him. The agreement was that he was to furnish his own truck and his help. In other words, he was to bear the entire expense incurred by him in hauling the logs. In making the trips he sometimes drove his truck, and sometimes he employed another to drive it. Appellee had no control whatever over the manner, method, or means of hauling the logs. The only control appellee had over Gray's operations was where he should get the logs and the place he should unload them at the mill.
One of the early cases involving this question is New Orleans, B.R., V. M. Railroad Company v. Norwood, 62 Miss. 565, 52 Am. Rep. 191. In that case the court said that numerous tests had been suggested for the determination of the question, "whose servant is this;" that among those tests were the following: "(1) The right of selecting the servant; (2) the right to discharge the servant; (3) the right to control the servant;" and the court further said "that he is not a master who is interested in the ultimate result of the work done as a whole, but not in the details of its performance."
In Callahan Construction Co. v. Rayburn, 110 Miss. 107, 69 So. 669, 670, the court said: "An `independent contractor' is one who renders service in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished."
In Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21, in discussing this question the court said that the main element required to constitute the relation of master and servant is that the servant is subject to the control of the master in carrying on the business at the time of the injury. The holding in this case was reaffirmed in Hutchinson-Moore Lumber Co. v. Pittman, 154 Miss. 1, 122 So. 191. In Louis Werner Sawmill Co. v. Northcutt, 161 Miss. 441, 134 So. 156, stress was laid on the word control. The court held in that case that the relation of master and servant ordinarily exists where one may control the work of another and direct the manner of doing it, and that an independent contractor is one representing the employer only as to the net result of the work, and not as to the means of doing it.
In Kisner v. Jackson, 159 Miss. 424, 132 So. 90, 91, in discussing this question, the court said: "There are several tests to be applied, the weight of each, and whether much or little, rising and falling in the scale as it may or may not be counterbalanced by one or more of the remaining tests, present in the particular case in hand." The court then proceeded to set out several tests, among which are the following: "Whether he [the employer] has the right to prescribe and furnish the details of the kind and character of work to be done. . . . Whether he has the right to direct the details of the manner in which the work is to be done."
In the present case appellee contracted with Gray for a certain net result, namely, the placing on appellee's millyard in New Albany such of the Ray logs as Gray chose to haul; the manner and means and expense of doing the work being left entirely to Gray. The relation of master and servant does not exist, unless the alleged master has some sort of substantial control over the means and methods of carrying out the contract. What logs Gray should haul and where he should place them did not constitute such control by appellee.
If appellant's contention were upheld it would lead to most mischievous and unjust consequences. For illustration: A has a trunk in a railroad baggage room; he engages a public drayman to deliver the trunk to his residence, for which he pays the charge of fifty cents; in making the delivery the drayman negligently injures a child on the street; the owner of the trunk would be liable.
The case of Hinton Walker v. Pearson, 142 Miss. 50, 107 So. 275, involved the construction of section 2240, Code 1930, giving a lien, for their wages, to timber men and sawmill employees on the product of the mills for which they worked. The facts in that case were much like the facts in the present case. The court held that the haulers of the lumber were not independent contractors, but servants, and entitled to the lien given by the statute. The court held that the word employee in the statute included a larger class than mere laborers. If presented the court might have decided that the statute applied to independent contractors as well as laborers and employees; that it would be necessary to give it that construction in order to carry out its purpose. In other words, the court might have decided that the word employees in that statute had as broad a meaning as the same word in section 2238. The decision in that case therefore is not overruled, except as to the ground upon which it was based. Disregarding that ground the decision may be sound. We are not now called upon to decide whether it is or not.
Affirmed.
Appellees, Hall and others, were engaged as partners in the sawmill and lumber business, operating under the firm name of Hall Neely. Their sawmill plant was located at New Albany. As a part of their business, and in order to furnish their sawmill with the necessary raw material, they purchased logs throughout the adjacent and available territory within reach of their plant, and had these logs brought to their sawmill at New Albany by means of trucks over the public highways. An employee of appellees named Neely had charge of buying the logs in the woods, and of having same cut and placed on the roadsides, thence to be hauled to the millyard at New Albany, and Neely also had charge of the employment of those who hauled the logs from the roadside to the mill. There were several haulers so engaged by Neely for appellees, and the usual arrangement was that each hauler would furnish his own truck and the oil and gasoline and repairs to operate the same, and would be paid at a certain rate per thousand feet, according to the check made thereof by appellees when the logs were unloaded at the mill.
Among those employed as log haulers was B.J. Gray, and on one of his trips, with his truck heavily loaded with logs, he negligently collided with an automobile in which appellant was traveling upon the public highway, and seriously injured her. Upon the trial the court granted a peremptory instruction for the sawmill partnership on the ground that Gray was an independent contractor, although the testimony is undisputed that Gray had no contract for any specific logs or any specific quantity of logs, or to haul from any specific place, or for any definite period of time. Under the employment appellees could discharge Gray at any day or hour, and had the right to direct him where to go to get logs and when and how many, and whether to go alone or with others upon the same piles of logs. There were, in fact, other haulers working alongside Gray under the same arrangements. The majority of the court holds that Gray, under these facts, was an independent contractor.
The case upon the facts is in exact point with the case of Hinton et al. v. Pearson, 142 Miss. 50, 107 So. 275, 276. On page 53 of 142 Miss., 107 So. 275, the facts in the latter case were set out as follows: "The appellee owned a sawmill situated about thirteen miles from Purvis, a railroad station. At this sawmill appellee had a lot of lumber which he desired hauled to Purvis and put on ramps for shipment. He employed appellants, who had trucks and drivers to haul the lumber, agreeing to pay them therefor three dollars per thousand feet. Appellants did not drive the trucks themselves, nor load and unload the lumber from the trucks. They furnished the trucks, and employed the drivers to drive them and load and unload the lumber. Appellee directed what lumber should be hauled and where it should be unloaded and placed at the railroad station in Purvis. As the lumber was delivered in the trucks by their drivers at the ramps at Purvis, one of the appellants was present and checked it in order to keep track of the amount hauled and delivered." There could rarely be found two cases, which upon the applicable facts, are so entirely similar as are these two cases; yet in the Hinton Case the haulers were held not to be independent contractors, but were employees. It will be observed that the majority seek to avoid the ruling in the Hinton Case by the argument that in that case there was involved the question of laborers' and employers' lien. True, but in order to get to the question whether the employees involved were entitled to that lien, it was necessary for the court first to determine whether they were employees or independent contractors, and the court held that they were employees; and now without overruling that case and upon facts precisely similar the court holds that the party here was an independent contractor.
For many years the chief occupations of the people of this state have been in agriculture and in lumbering. It had hardly occurred to any one throughout these long years, and until lately, that the cotton picker who furnished his own sack, and was paid so much per hundred pounds, was anything than an employee, and likewise as to a log hauler who furnished his own truck and was paid so much per thousand feet. In the case Harper v. Wilson, 163 Miss. 199, 140 So. 693, the point was raised that in such a case a cotton picker named Teresa was an independent contractor. In response to that contention, after citing a wealth of authority, the attorneys for appellees made an additional scintillating protest, which we believe we might here appropriately quote. "King Solomon with all his wisdom has been discredited for certainly here is something new under the sun. Negro cotton pickers independent contractors! Shades of Uncle Remus, Bre'r Rabbit and the Tar Baby! The songs and laughter, beloved of the poet and author, floating over the domain of the army worm and the empire of the boll weevil are no longer the songs of the tenants and the laughter of the servants, but the melodious voices of independent contractors. So perishes a glamorous and beautiful tradition; and so passes incomparable legends. When, in our youth we sat upon the knees of Uncle Remus and Old Reliable, entranced by their folk lore tales, we were listening to independent contractors. So fades this world's illusions!
"The song of the old black mammy: `I got wings, You got wings, All God's chilluns got wings,' has passed into oblivion for the voice of Teresa rises with a new libretto to an ancient score: `I got a sack, You got a sack, All in'pendent contractors got sacks.'"
So it is here, all independent contractors got trucks. The case Hinton v. Pearson is in my opinion in perfect point, and since the court has not voted to overrule it, I deem myself bound by it, and therefore dissent from the opinion of the majority in the instant case.
Judge Ethridge joins in this dissent.