Summary
In Louis A. Gily Sons v. Shankle's Dependents, 246 Miss. 384, 149 So.2d 480 (1963), another dragline case, the Court, again looking at who had the right of control, held that O'Neal was not an independent contractor but rather an employee of Gily, stating, "The traditional test of the employer-employee relation is the right of the employer to control the details of the work."
Summary of this case from Jones v. James Reeves Contractors, Inc.Opinion
No. 42553.
February 4, 1963.
1. Workmen's compensation — employer-employee relationship — drag line operator not employee of owner of drag line, but employee of general contractor.
Owner of drag line, who contracted to move 25,000 yards of dirt for general contractor, who set pay scale, directed time of work, secured job site, and could have drag line moved from place to place, and directed time and method of payment, was not an independent contractor, and employee-employer relationship existed between operator of drag line, who was electrocuted while performing his duties, and general contractor, and employee was within coverage of Workmen's Compensation Law. Sec. 6998-04, Code 1942.
2. Master and servant — employer-employee relationship — traditional test of.
Traditional test of the employer-employee relationship is the right of the employer to control the details of the work.
3. Workmen's compensation — employer-employee relationship — criteria in determining.
Where one engages another to perform certain work, and he retains control of conduct of person that is thus engaged with respect to work to be done, and the order, method, and plan of work, the relation is that of master and servant, and not of employer and independent contractor. Sec. 6998-04, Code 1942.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Lafayette County; W.M. O'BARR, Judge.
Cox, Dunn Clark, Jackson, for appellants.
I.J.L. O'Neal was not a subcontractor of appellant Gily and Son. E.L. Bruce Co. v. Hampton, 225 Miss. 242, 83 So.2d 101; Indiana Limestone Co. v. Cuthbert, 126 Kan. 262, 267 P. 983; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; March v. Rothey, 117 W. Va. 94, 183 S.E. 914; Mississippi Employment Security Comm. v. Heidelberg Hotel Co., 211 Miss. 104, 51 So.2d 47; Rogers v. Phillips Lumber Co., 241 Miss. 590, 130 So.2d 856; Wade v. Traxler Gravel Co., 232 Miss. 592, 100 So.2d 103; Webb v. Blue Lightning Service Co., 237 Miss. 862, 116 So.2d 753; Sec. 6998.04, Code 1942; Dunn, Mississippi Workmen's Compensation Law, Secs. 71, 73, 80.
II. Assuming for the sake of argument that O'Neal could be considered Gily's subcontractor once he began performance of his agreement, still, and nevertheless, performance under the contract had not been commenced at the time of Shankle's death. Mills v. Barrett, 213 Miss. 171, 56 So.2d 485; Mills v. Jones' Estate, 213 Miss. 680, 56 So.2d 488; Pace v. Laurel Auto Parts, Inc., 238 Miss. 421, 118 So.2d 871; Wallace v. Copiah County Lumber Co., 223 Miss. 70, 77 So.2d 316; Dunn, Mississippi Workmen's Compensation Law, Sec. 103.
J.A. Travis, Jr., Jackson; Charles C. Finch, Batesville, for appellees.
I. The Circuit Court and the full Commission were correct in their finding of fact that the deceased employee, Kenneth Shankle, was accidently killed in an accident that arose out of and in the course and scope of his employment with the appellant, Louis A. Gily Son. Mills v. Barrett, 213 Miss. 171, 56 So.2d 485; Mills v. Jones' Estate, 213 Miss. 680, 56 So.2d 488; Dunn, Mississippi Workmen's Compensation Law, Secs. 10, 98 pp. 5, 79; Larson, Workmen's Compensation Law, Sec. 49 p. 723.
II. The award of compensation for death benefits as made to the appellees herein by the full Commission and as affirmed by the Circuit Court, was correct in all respects since said award was supported by substantial evidence and the Commission is the finder of facts in all respects. Boyd Construction Co. v. Worthy, 234 Miss. 671, 107 So.2d 120; California Eastern Airways v. Neal, 228 Miss. 370, 87 So.2d 895; Capitol Broadcasting Co. v. Wilkerson, 240 Miss. 64, 126 So.2d 242; Cole v. Superior Coach Corp., 234 Miss. 287, 106 So.2d 71; Dowdle Pearson v. Hargrove, 222 Miss. 64, 75 So.2d 277; E.L. Bruce Co. v. Hampton, 225 Miss. 242, 83 So.2d 101; Fair Stores v. Bryant, 238 Miss. 434, 118 So.2d 295; Freeman v. Mississippi Power Light Co., 230 Miss. 396, 92 So.2d 658; Gaines v. McCormick, 238 Miss. 535, 117 So.2d 467; Grubbs v. Revell Furniture Co., 234 Miss. 319, 106 So.2d 390; Jackson Oil Products Co. v. Curtis, 241 Miss. 188, 129 So.2d 403; Kisner v. Jackson, 159 Miss. 424, 132 So. 90; Malley v. Over The Top, Inc., 229 Miss. 347, 90 So.2d 678; Mills v. Barrett, supra; Mills v. Jones' Estate, supra; Mississippi Employment Security Comm. v. Heidelberg Hotel Co., 221 Miss. 104, 51 So.2d 47; Mississippi Products, Inc. v. Gordy, 224 Miss. 690, 80 So.2d 793; Pace v. Laurel Auto Parts, Inc., 238 Miss. 421, 118 So.2d 871; Railway Express Agency v. Hollingsworth, 221 Miss. 688, 74 So.2d 754; Rogers v. Phillips Lumber Co., 241 Miss. 590, 130 So.2d 857; Russell v. South-eastern Utilities Service Co., 230 Miss. 272, 92 So.2d 544; Smith v. St. Catherine Gravel Co., 220 Miss. 462, 71 So.2d 221; Southern Engineering Electric Co. v. Chester, 226 Miss. 136, 83 So.2d 811; Tanner v. American Hardware Corp., 238 Miss. 612, 119 So.2d 380; Wade v. Traxler Gravel Co., 232 Miss. 592, 100 So.2d 103; Wallace v. Copiah County Lumber Co., 223 Miss. 90, 77 So.2d 316; Webb v. Blue Lightning Service Co., 237 Miss. 862, 116 So.2d 753; Williams Brothers Co. v. McIntosh, 226 Miss. 553, 84 So.2d 692; Wilson Furniture Co. v. Wilson, 237 Miss. 512, 115 So.2d 141.
In this workmen's compensation case, the question is whether the Workmen's Compensation Commission was warranted in finding that the deceased worker was an employee, rather than a servant of an independent contractor.
Louis A. Gily Sons, Inc. (called Gily) entered into a contract with the State Building Commission to do general contract work on a women's dormitory at the University of Mississippi. Gily agreed to furnish all the materials according to plans and specifications, and to make a dirt fill, in order to erect the building.
Several days before the fatal accident, Gily entered into a verbal contract with O'Neal, who was to furnish a dragline and to load 25,000 yards of dirt for Gily on trucks owned and provided by Gily. Gily was to furnish the land and the dirt to be dug by the dragline and loaded on the trucks. O'Neal was to provide a dragline operator to load Gily's trucks with the dirt, at 15¢ per cubic yard. Gily would pay O'Neal "upon the monthly estimates of and out of the monthly payments from the Mississippi State Building Commission."
O'Neal hired Kenneth Shankle, the deceased employee, to operate the dragline. The land from which the dirt was to be removed was approximately one and one-half miles west of Oxford and the University. Several weeks after Shankle's death this oral contract was reduced to writing. O'Neal agreed with Gily that he would pay a certain wage scale and make reports to Gily of the hours his men worked. Eugene Gily, an officer of the company, went with O'Neal to the location, showed him where to dig, told him he wanted to start right away, and instructed him to cut the lot down to a level. Gily had the power to move O'Neal's dragline operations from one spot to another, and exercised that power on several occasions to obtain dirt with more clay in it. Gily reserved the authority to instruct O'Neal when he could and could not work, and how many hours a day to do so.
O'Neal made arrangements with Carter to move his dragline to the job site. He hired Shankle to operate it, and, on the day in question, McKenzie, an employee of Carter, Shankle, and another employee of O'Neal, Robinson, loaded the dragline on Carter's truck, which transported it to the location. Gily previously had cleared the land where the dirt was to be dug and loaded. After the dragline was removed from the truck, and on the location of the job, Robinson was driving it late that afternoon, when it was almost dark. Shankle started to place a pipe into the metal tracks to keep them from slipping, when he was electrocuted, either by the boom of the dragline coming in contact with an overhead electric line, or the electricity arcing from the line to the boom and into Shankle.
It is undisputed that Shankle's death arose out of and in the course of his employment. O'Neal considered that he was performing the Gily contract at the time Shankle was killed; that Shankle's work was necessary for performance of the contract and was a part of it; and he later reported to Gily 3-4 hours of work for Shankle on this occasion.
The Commission found that Gily exercised material controls over O'Neal under the contract. Considering especially the facts that Gily set the pay scale, directed the time of work, secured the job site, could have the dragline moved from place to place, and directed the time and method of payment, it held that O'Neal was not an independent contractor.
After finding all of these elements of control by Gily over O'Neal, and determining that he was not an independent contractor, but an employee, the Commission nevertheless awarded compensation on a theory which we do not need to consider, namely, that O'Neal was a sub-contractor of Gily, and Shankle was covered as a statutory employee. Miss. Code 1942, Rec., Sec. 6998-04. Since the Commission reached the right result and found the necessary facts, we do not decide whether O'Neal was a statutory employee.
(Hn 1) The great weight of the evidence, in accord with the findings of the Commission, shows that O'Neal was not an independent contractor, but was an employee of Gily, and therefore Shankle was also an employee of Gily. (Hn 2) The traditional test of the employer-employee relation is the right of the employer to control the details of the work. 1 Larson, Workmen's Compensation Law, Sec. 44 et seq. The right of control and the overt exercise of that right by Gily, over both O'Neal and Shankle, reflects the existence of a relationship of employer and employee.
(Hn 3) Where one engages another to perform certain work, retaining control of the conduct of that person thus engaged with respect to the work to be done, and the order, method, and plan of the work, the relation is that of master and servant, and not of employer and independent contractor. The criteria in a workmen's compensation case were fully reviewed in Wade v. Traxler Gravel Co., 232 Miss. 592, 100 So.2d 103 (1958). To the same effect are Bush v. Dependents of Byrd, 234 Miss. 782, 108 So.2d 211 (1959), and Mullins Parker v. Rucker, 237 Miss. 330, 114 So.2d 761 (1959). The present facts fall within these criteria and decisions. Hence the order of the Commission awarding compensation and the judgment of the circuit court should be affirmed.
Affirmed.
Lee, P.J., and Arrington, McElroy, and Gillespie, JJ., concur.