Summary
In Nickerson, which was written the same year as Phillips Lumber, the supreme court held that a seller of timber had the right to insert into the deed certain conveyance provisions that would protect the timber not sold as well as the land.
Summary of this case from Mayberry v. HardwoodsOpinion
No. 41826.
April 17, 1961.
1. Workmen's compensation — liability for payment of compensation — contractors — subcontractors.
Seller of timber had right to insert in conveyance provisions which would protect timber not sold as well as land, and such provisions did not make buyer a contractor for removal of timber and render it liable for compensation to workman employed by subcontractor. Sec. 6998-04, Code 1942.
Headnote as approved by Jones, J.
APPEAL from the Circuit Court of Scott County; O.H. BARNETT, J.
Crawley Ford, Kosciusko, for appellant.
I. The claimant appellant was a statutory employee of Patridge and therefore entitled to recover compensation disability benefits from Patridge and his compensation carrier in accordance with terms and provisions of Section 4 of the Mississippi Workmen's Compensation Act (Section 6998-04 Mississippi Code of 1942 as amended). Brothers v. Dierks Lumber Coal Co. (Ark.), 232 S.W.2d 646; Cook, Commr. of Revenues v. Wilson, 208 Ark. 459, 187 S.W.2d 7; Corban v. Skelly Oil Co., 256 F.2d 775; Hobbs-Western Co. v. Craig, 209 Ark. 630, 192 S.W.2d 116; Hobbs-Western Co. v. Morris, 212 Ark. 105, 204 S.W.2d 889; Nylund v. Thornberg, 209 Minn. 79, 295 N.W. 411; Wilson v. Cook, 327 U.S. 474, 90 L.Ed. 793, 66 S.Ct. 663; Anno. 58 A.L.R. 872; Sec. 6998-04, Code 1942; Sec. 4, Mississippi Workmen's Compensation Act; Sec. 6, 1939 Workmen's Compensation Act, Arkansas Statutes, Sec. 81-1306; 71 C.J. 483 et seq.; 2 Schneider's Workmen's Comp. Text (perm. ed.) p. 176.
II. Mississippi workmen's compensation statute is to be accorded a broad and liberal construction with doubtful cases being resolved in favor of compensation. Brookhaven Steam Laundry v. Watts, 214 Miss. 569, 59 So.2d 294; Central Electric Power Assn. v. Hicks, 236 Miss. 378, 110 So.2d 351; Deemer Lumber Co. v. Hamilton, 211 Miss. 673, 52 So.2d 634; Employer's Liability Ins. Co. of Wis. v. Haltom, 235 Miss. 74, 108 So.2d 29; Ingall's Shipbuilding Corp. v. Howell, 221 Miss. 824, 74 So.2d 863; Jackson v. Bailey, 234 Miss. 697, 107 So.2d 593; Joe Ready's Shell Station Cafe v. Ready, 218 Miss. 80, 65 So.2d 268; King v. Westinghouse Electric Corp., 229 Miss. 830, 92 So.2d 209; Lindsey v. Ingall's Shipbuilding Corp., 219 Miss. 437, 68 So.2d 872; McKenzie v. Gulf Hills Hotel, 221 Miss. 723, 74 So.2d 830; National Surety Corp. v. Kemp, 217 Miss. 537, 64 So.2d 723; Wilson v. International Paper Co., 235 Miss. 152, 108 So.2d 554; Sec. 6998-04, Code 1942; Sec. 4, Mississippi Workmen's Compensation Act.
Crawley, Brooks Guyton, Kosciusko, for appellees.
I. The "stumpage sale contract" did not constitute the Patridge Lumber Company a "contractor", but created the relationship of vendor and purchaser between the parties. Sec. 6998-04, Code 1942.
II. The decisions of the courts of Minnesota and Arkansas are not controlling as to liabilities under the Mississippi Workmen's Compensation Act. Brothers v. Dierks Lumber Coal Co., 217 Ark. 632, 232 S.W.2d 646; Corban v. Skelly Oil Co., 256 F.2d 775; Hobbs-Western Co. v. Craig, 209 Ark. 630, 192 S.W.2d 116; Hobbs-Western Co. v. Morris, 212 Ark. 105, 204 S.W.2d 889; Nylund v. Thornberg, 209 Minn. 79, 205 N.W. 411.
III. Under the decisions of the Supreme Court of Mississippi, John Haywood Brett was an independent Contractor, and Patridge Lumber Company is not liable for compensation benefits to an injured employee of an independent contractor. Adrews v. Gross Jane Tie Co., 211 Ark. 999, 204 S.W.2d 783; Bardwell's Estate v. Perry Timber Co., 222 Miss. 854, 77 So.2d 708; E.L. Bruce Co. v. Hampton, 225 Miss. 252, 83 So.2d 101; Eley v. Benedict, 113 Ind. App. 202, 46 N.E.2d 492; Employers Liability Ins. Co. of Wis. v. Haltom, 235 Miss. 74, 105 So.2d 29; Employers Mutual Liability Ins. Co. v. Industrial Comm., 224 Wis. 527, 272 N.W. 481; Rish v. Louisville Tie Co., Inc., 104 Ind. App. 591, 12 N.E.2d 381; Simmons v. Cathey-Williford Jones Co., 220 Miss. 389, 70 So.2d 847; Stovall's Estate v. A. Deweese Lumber Co., 222 Miss. 660, 77 So.2d 291; Annos. 58 A.L.R. 872, 105 A.L.R. 580; 99 C.J.S., Secs. 107-111 pp. 362-390; 2 Schneider's Workmen's Comp. Text (3d ed.) Chap. 9 pp. 174-275.
IV. Construction of the Workmen's Compensation Act. Employer's Liability Ins. Co. of Wis. v. Haltom, supra; Stovall's Estate v. A. Deweese Lumber Co., supra.
John Henry Nickerson, having been injured June 2, 1959, in the course of his employment, later filed claim under the Workmen's Compensation Act against D.V. Patridge, d/b/a Patridge Lumber Company, Patridge's insurance carrier, and John H. Brett.
On hearing, the attorney-referee held that Nickerson was the employee of Brett and was entitled to compensation as against Brett; that he was not an employee of Patridge, and entitled to no compensation from Patridge or his insurance carrier. By a 2-1 decision the Commission affirmed the finding of the attorney-referee. In the Circuit Court of Scott County, the decision of the Commission was affirmed. There is no appeal by Brett. Here Nickerson is seeking to hold Patridge liable.
The following statement of facts is sufficient to show the issue before us: On November 12, 1958, Patridge Lumber Company purchased from the International Paper Company all timber marked with yellow paint on a portion of 80 acres of land in Scott County, Mississippi. Patridge contracted with Brett for the cutting, removing and sawing of said timber into lumber and then moving the lumber from his mill to Winona. The holding on the hearing was, as stated, that Nickerson was an employee of Brett; that Brett was an independent contractor, and that Nickerson was not an employee of Patridge Lumber Company.
The deed to Patridge recited a cash consideration of $6,790.26, and contained substantially the following provisions: The buyer was to have until December 31, 1959 within which to cut and remove the timber; if any of the covenants and stipulations were violated, the seller might suspend buyers operations on the lands until such time as the buyer paid reasonable damages for such violations and agreed to correct same; the buyer was required to conduct his logging operations so as to avoid and minimize damage to all trees not conveyed; the logging operations by buyer should be conducted only with the usual equipment such as trucks, tractors, and animal drawn wagons.
If any timber other than that conveyed was cut or unduly damaged by the buyer's operations, buyer would be liable therefor at a fixed price per thousand. It was further provided that the buyer should use all reasonable precaution to prevent fires and the spread of fires. Buyer agreed to notify seller of any fire, if possible, and to have his employees that might be carrying on operations on the land control, or assist in controlling the fires.
The buyer was required to leave all roads, property lines and drainage ditches clear. The buyer was prohibited from nailing fences or other structures to standing timber.
Appellant contends that under his deed with such provisions Patridge Lumber Company did not occupy the position of buyer but was in the position of a prime contractor for the cutting and removing of said timber; that Brett was a subcontractor who had not qualified as a self-insurer or by the securing of insurance. Therefore, it is asserted Patridge was liable under the last paragraph of Section 6998-04 of the Mississippi Code of 1942, as amended in 1958, reading as follows:
"In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure the payment of such compensation to employees of the subcontractor unless the subcontractor has secured such payment. . . ."
Appellant cites an Arkansas case, Brothers, et al. v. Dierks Lumber and Coal Company, et al., 232 S.W.2d 646, and cases cited therein, as authority which we should follow. The Brothers case is different on its facts and it and the cases cited there are not controlling here.
(Hn 1) The seller of the timber had a right to insert in its conveyance provisions which would protect its timber not sold as well as its land. Most of the provisions in said deed are in common use. They do not change the conveyance to Patridge so as to make Patridge a contractor for the removal of such timber. Patridge was the owner of the timber conveyed. The attorney-referee, the commission and the circuit court held that Brett was an independent contractor; that the appellant was an employee of Brett and not of Patridge, and with this finding we agree. The case is affirmed and remanded to the Workmen's Compensation Commission insofar as the employer Brett is concerned.
Affirmed and remanded.
McGehee, C.J., and Kyle, Ethridge and Gillespie, JJ., concur.