Johnson v. Vincennes Bridge Co. , 9 La. App. 173 ( 1928 )

MOUTON, J.

The defendant was engaged in constructing a bridge across Pearl River,.- and ■ through • one - -Decker,- ■ its foreman, employed plaintiff to haul steel from freight cars at Pearl River Station to where it was erecting the bridge, a distance of about half a mile. The steel had to be unloaded by plaintiff from freight cars at the station, and had to be hauled by him in a truck to the bridge where it was to be used in its construction. The contract, a verbal one, was made on May 30, 1926. Plaintiff, under the agreement was to haul all'the'steel that was then at the station, which it was figured amounted to thirty-two tons. He was to receive two dollars a ton for the hauling, and had to furnish a truck for that purpose and the necessary labor.

On June first, two days after the date of the agreement, plaintiff with his truck and two laborers he had employed, started on the job to unload the steel, and to transport it in his truck to ‘the 'place where the bridge was being erected. The same evening, about four o’clock, while plaintiff was loading his truck with the steel a heavy piece of steel fell on his hand, crushing two fingers, which later resulted in their amputation.

Plaintiff, for the injuries thus received, brings this suit for compensation under the provisions of the Employer’s Liability Act. Judgment was rendered in his favor from which defendant company prosecutes this appeal.

Counsel for plaintiff and counsel for defendant, to a large extent, seem to rely on the case of Burt vs. Davis-Wood Lumber Company, reported in 157 La. 111, 102 So. 87. In that case, Burt, the plaintiff, had been employed by defendant company to carry its manufactured lumber to market, furnished his own team and wagon, and was paid at a specified rate per thousand feet. In this case plaintiff was to furnish his truck, and was to receive two dollars per ton, which, as in the Burt case, was likewise a specified rate. In that respect the two cases are similar. The similarity stops there.

In the Burt case it was shown that Burt boarded at the boarding house which afforded accommodations to the company and its mill’s force. He was carried on the payroll as were other laborers of the mill, and was paid on the regular pay days, every two weeks. The lumber that he hauled was pointed out to him, measured, and he was given specific direction to whom he should deliver it.

Other facts are referred to in the opinion which showed that the company had practical control and supervision of the haulers which carried with it the authority to discharge the employee at will. Under that state of facts, as was remarked by the Court, the doctrine of independent contractor had no application. After thus commenting on the evidence the Court then expresses itself in the following significant manner:

“There was • obviously no piece work to be performed, there was no particular job to be executed, there was no specific pile, stack or quantity of lumber to be hauled, but only such as was pointed out * * *• by the employer.”

In the instant case there was a specific pile, stack or quantity of steel to be carried, there was a particular job to be executed, and obviously a piece of work to be performed. This brings the present case clearly within the declaration of the Court above reproduced, and which differentiates it in well defined lines from the essential controlling facts of the Burt case. In this case it is shown that plaintiff had employed two laborers to assist him in doing the job, that they were paid by him, that the defendant company did not know who they were and that he also furnished the truck to haul the steel. Such facts, in cases of this character, have always been considered as important factors to show that the party engaged to do the work is not a servant, but must be considered as an independent contractor. Barrow vs. Shields, 13 La. Ann. 62; Clark vs. Tall Timber Lbr. Co., 140 La. 380, 73 So. 239; Peyton vs. Richards, 11 La. Ann. 62.

The record shows also that plaintiff expected to get through with the hauling in four days, and that his expenses, including the use of his truck which he estimated at five dollars, would amount to $37.50. His contract he says, was at the rate of $2.00 per ton for the haulings which would have totaled $64.00 for the thirty-two tons to be hauled. Deducting the $37.50 from these $64.00, the difference in his favor would have been $27.50. His truck was unquestionably thrown in as an investment in the undertaking and the balance he expected to receive, after deducting the wages he had to pay his employees with the use of the truck thrown in, can be considered in no other light than as the profit he anticipated to make on his contract. These facts considered with the conditions of the agreement to which we have hereinabove referred, make it quite clear that plaintiff was an independent contractor and was not an employee or servant of defendant company.

Counsel for plaintiff refer to the fact that the company had furnished a gin-pole, ropes, block and tackle, .also a tractor to assist in unloading the steel from the freight cars; also, that Decker, foreman of the company, had explained the way to use this equipment. In showing plaintiff how to use this equipment to unload the steel from the cars, he was not attempting to direct or control plaintiff in the hauling of the stuff to the bridge where it was to be used, and for which plaintiff was employed. Plaintiff .had a specific work to do, and the manner of its doing, including the employment, payment and control of the labor, was left entirely with him.

In a case presenting similar facts, and where equipment had been furnished by a railroad company to carry out the work, the court held that the party was an independent contractor. See Robideaux vs. Hebert et al., 118 La. 1089, 43 So. 887, 12 L. R. A. (N. S.) 632.

The proof shows that after plaintiff was injured, he went to see a physician and that the two laborers he had employed carried a load of steel to the bridge; that the next morning they went back to the station to continue the work on which they had started the day before. They found that the company had placed others on the work, and for that reason they did not proceed any further and returned with the truck to plaintiff’s home. It is shown that the two laborers had been sent by plaintiff to resume work the morning after he was injured. This fact shows that plaintiff considered that under his contract his duty was to haul the steel to the bridge, and that he had discharged this obligation in performance of the job he had undertaken through the men he had employed to assist him in accomplishing that object.

Counsel for plaintiff say that in putting others on the job next morning, the company actually exercised its right to discharge, and that this circumstance is a strong, if not a decisive factor in proving that plaintiff was an employee or servant of the company. The facts and circumstances of the case to which we have hereinabove referred, show that under the agreement plaintiff had been engaged as an independent contractor, and had so been considered after his employment. As he was, under the terms of his agreement, an independent contractor the nature of that contract had fixed legal essentials, and neither of the parties could control its legal effects. Being made, the law alone could govern its results. Lange vs. I. C. R. R. Co., 107 La. 702, 31 So. 1003: Cooley vs. Broad, 29 La. Ann. 345, 29 Am. Rep. 332; Adams Mach. Co. vs. Newman, 107 La. 702, 32 So. 38.

As plaintiff was an independent contractor he could have insisted on his rights under the contract, but neither plaintiff nor defendant could change its nature and convert plaintiff from an independent contractor to a servant or employee of defendant company.

For the foregoing reasons it is adjudged and decreed that the judgment appealed from be avoided and reversed and that the demand of the plaintiff be rejected at his cost in both courts.