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  • Leon E. Provine, William A. Lomax, Grenada, for appellant. I. Claimant was employed by Eddy Embry of the Phillips Lumber Company, and working at his direction, in cutting lumber to specification for the Phillips Lumber Company, and this regardless of whether Metts was an independent contractor or not. II. Metts was a foreman and not an independent contractor. III. If Metts was an independent contractor, then he employed more than eight men on a sub-contract for the company and it remains liable. That the relationship in this instance would be that of principal and surety. Collation of authorities: Carroll v. E.G. Laughlin Sons, 220 Miss. 535, 71 So.2d 461; Jackson v. Fly, 215 Miss. 303, 60 So.2d 782; Johnson v. Martinson, 110 Conn. 221, 147 A. 705, 66 A.L.R. 1428; Marter v. Cathey-Williford Jones Lumber Co., 225 Miss. 118, 82 So.2d 724; Mills v. Barrett, 213 Miss. 171, 56 So.2d 485; Mosley v. Jones, 224 Miss. 725, 80 So.2d 819; Robinson v. Younse Lumber Co., 8 La. App. 160; Sones v. Southern Lumber Co., 215 Miss. 148, 60 So.2d 582; Sec. 6998-04, Code 1942; Dunn's Mississippi Workmen's Compensation Law, Sec. 10; 40 Words Phrases p. 340. Satterfield, Shell, Williams Buford, Jackson, for appellee. I. The appellant has failed to state a cause of action. Ingalls Shipbuilding Corp. v. Howell, 221 Miss. 824, 74 So.2d 863; Smith v. St. Catherine Gravel Co., 220 Miss. 422, 71 So.2d 221; T.H. Mastin Co. v. Mangum, 215 Miss. 454, 61 So.2d 298; 100 C.J.S., Workmen's Compensation, Sec. 521; Dunn's Mississippi Workmen's Compensation Law, Secs. 163, 164, 165; Larson's Workmen's Compensation Law, Sec. 80.33. II. Under the law of the State of Mississippi and under the facts of the case, Ervin Metts was an independent contractor, and, therefore, the appellant was not an employee of Phillips Lumber Company. Bardwell v. Perry Timber Co., 222 Miss. 854, 77 So.2d 708; Carr v. Crabtree, 212 Miss. 656, 55 So.2d 408; Employers Liability Ins. Co. of Wis. v. Haltom Lumber Co., 235 Miss. 74, 108 So.2d 29; Townsend v. Phillips Lumber Co. (Miss.), 128 So.2d 584. III. The decision of the Mississippi Workmen's Compensation Commission, as affirmed by the Circuit Court of Grenada County, Mississippi, is supported by substantial evidence and must be affirmed by the Supreme Court. Cowart v. Pearl River Tung Co., 218 Miss. 472, 67 So.2d 356; Dowdle Pearson, Inc. v. Hargrove, 222 Miss. 64, 75 So.2d 277; Freeman v. Mississippi P. L. Co., 230 Miss. 396, 92 So.2d 658; Ingalls Shipbuilding Corp. v. Howell, supra; Jackson Ready-Mix Concrete Co. v. Young, 230 Miss. 644, 93 So.2d 645; Smith v. St. Catherine Gravel Co., supra; Sones v. Southern Lumber Co., 215 Miss. 148, 60 So.2d 582.
Judges
  • GILLESPIE, J.
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citation codes
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Attorney(S)
  • Leon E. Provine, William A. Lomax, Grenada, for appellant. I. Claimant was employed by Eddy Embry of the Phillips Lumber Company, and working at his direction, in cutting lumber to specification for the Phillips Lumber Company, and this regardless of whether Metts was an independent contractor or not. II. Metts was a foreman and not an independent contractor. III. If Metts was an independent contractor, then he employed more than eight men on a sub-contract for the company and it remains liable. That the relationship in this instance would be that of principal and surety. Collation of authorities: Carroll v. E.G. Laughlin Sons, 220 Miss. 535, 71 So.2d 461; Jackson v. Fly, 215 Miss. 303, 60 So.2d 782; Johnson v. Martinson, 110 Conn. 221, 147 A. 705, 66 A.L.R. 1428; Marter v. Cathey-Williford Jones Lumber Co., 225 Miss. 118, 82 So.2d 724; Mills v. Barrett, 213 Miss. 171, 56 So.2d 485; Mosley v. Jones, 224 Miss. 725, 80 So.2d 819; Robinson v. Younse Lumber Co., 8 La. App. 160; Sones v. Southern Lumber Co., 215 Miss. 148, 60 So.2d 582; Sec. 6998-04, Code 1942; Dunn's Mississippi Workmen's Compensation Law, Sec. 10; 40 Words Phrases p. 340. Satterfield, Shell, Williams Buford, Jackson, for appellee. I. The appellant has failed to state a cause of action. Ingalls Shipbuilding Corp. v. Howell, 221 Miss. 824, 74 So.2d 863; Smith v. St. Catherine Gravel Co., 220 Miss. 422, 71 So.2d 221; T.H. Mastin Co. v. Mangum, 215 Miss. 454, 61 So.2d 298; 100 C.J.S., Workmen's Compensation, Sec. 521; Dunn's Mississippi Workmen's Compensation Law, Secs. 163, 164, 165; Larson's Workmen's Compensation Law, Sec. 80.33. II. Under the law of the State of Mississippi and under the facts of the case, Ervin Metts was an independent contractor, and, therefore, the appellant was not an employee of Phillips Lumber Company. Bardwell v. Perry Timber Co., 222 Miss. 854, 77 So.2d 708; Carr v. Crabtree, 212 Miss. 656, 55 So.2d 408; Employers Liability Ins. Co. of Wis. v. Haltom Lumber Co., 235 Miss. 74, 108 So.2d 29; Townsend v. Phillips Lumber Co. (Miss.), 128 So.2d 584. III. The decision of the Mississippi Workmen's Compensation Commission, as affirmed by the Circuit Court of Grenada County, Mississippi, is supported by substantial evidence and must be affirmed by the Supreme Court. Cowart v. Pearl River Tung Co., 218 Miss. 472, 67 So.2d 356; Dowdle Pearson, Inc. v. Hargrove, 222 Miss. 64, 75 So.2d 277; Freeman v. Mississippi P. L. Co., 230 Miss. 396, 92 So.2d 658; Ingalls Shipbuilding Corp. v. Howell, supra; Jackson Ready-Mix Concrete Co. v. Young, 230 Miss. 644, 93 So.2d 645; Smith v. St. Catherine Gravel Co., supra; Sones v. Southern Lumber Co., 215 Miss. 148, 60 So.2d 582.
Judges
  • GILLESPIE, J.
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Smart Summary

RODGERS v. PHILLIPS LUMBER COMPANY et al.

1. Workmen's compensation — independent contractor — claimant employee of.

Evidence sustained Commission findings that one who contracted with lumber company to cut timber for it and for whom compensation claimant worked was an independent contractor and that claimant was not employee of lumber company.

2. Workmen's compensation — subcontractors — lumber company not within statute making prime contractor liable for compensation not secured by subcontractor.

Lumber company which was owner of timber upon severance from another's land and which engaged third party to cut and haul timber for it was not a "prime contractor" with respect to cutting and hauling operations and such third party was not its "subcontractor" within statute making prime contractor liable for compensation not secured by subcontractor. Sec. 6998-04, Code 1942.

Headnotes as approved by Gillespie, J.

GILLESPIE, J.

(Hn 1) The main issue on this appeal is whether Metts, for whom claimant worked, was an independent contractor. The Commission found on ample evidence that appellee, Phillips Lumber Company, entered into a contract with Metts to cut timber, manufacture the logs into rough lumber and deliver it to Phillips Lumber Company mill for a certain sum per thousand board feet, and that Metts was an independent contractor and his employees, including claimant, were not employees of Phillips Lumber Company. Since the Commission's findings were based on substantial evidence there is no basis for this Court to reverse.

Claimant also contends that Phillips Lumber Company is liable to him for compensation under the last paragraph of Code Section 6998-04, which is 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." The facts relating to this contention are: Phillips Lumber Company is in the business of manufacturing rough lumber into finished lumber. It buys most of the rough lumber from other mills. It also buys timber lands and contracts with others to cut the trees, saw them into rough lumber, and deliver it to Phillips' mill. In this particular instance it bought timber from Koppers Company, the landowner, and paid a certain sum based on the quantity of logs cut, which were measured as cut by an employee of Koppers Company. Phillips contracted with Metts to cut the timber, haul it to Metts' mill, saw the logs into rough lumber and deliver it to Phillips' mill. Metts, as already stated, was independent in carrying out this contract. Metts did not carry Workmen's Compensation Insurance. We assume, without deciding, that he employed more than seven employees.

A concise definition of a subcontractor is given in Mississippi Workmen's Compensation, Dunn, Sec. 10, p. 7 as follows: "A subcontractor is one who enters into a contract, express or implied, for performance of an act with a person who has already contracted for its performance, or who takes a portion of a contract from the principal or prime contractor."

Cf. Mosley v. Jones, 224 Miss. 725, 80 So.2d 819.

(Hn 2) Phillips Lumber Company was the owner of the timber upon severance from the land. It was not a prime contractor — it had not already contracted for the performance of that done under its contract with Metts. Its contract with Metts was a contract, not a subcontract. We find no merit in the contention based on the last paragraph of Code Section 6998-04.

Affirmed.

Lee, P.J., and Kyle, Ethridge, and Jones, JJ., concur.

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RODGERS v. PHILLIPS LUMBER CO
(Jun 5, 1961)