
    HEBERT v. GATES.
    No. 3341.
    Court of Appeal of Louisiana First Circuit.
    March 2, 1951.
    
      Bass & Brame, Lake Charles, for appellant.
    R. W. Farrar, Jr., M. R. Stewart, Lake Charles, for appellee.
   LOTTINGER, Judge.

This is a suit under the Workmen’s Compensation Laws of the State of Louisiana, LSA-RS 23:1021 et seq., for total and permanent disability resulting from an accidental injury sustained by plaintiff in the course of his alleged employment with Stanley W. Gates, the defendant. The trial court, for oral reasons, held that plaintiff was engaged in a hazardous occupation, that plaintiff was employed by defendant, and that the accident occurred while plaintiff was in the course of said employment, so as to entitle plaintiff to compensation for said injury. The lower court found disability at 50% of the loss of a hand, and rendered judgment at $15 per week for 150 weeks commencing April 19, 1949, with 5% interest thereon per an-num on all deferred payments until paid;, plus $131.30 for medical expenses, with 5% interest per annum thereon from date of judicial demand until paid, plus all costs. Both parties appeal, plaintiff requesting that said judgment be increased.

The accident occurred on April 19, 1949, while plaintiff was engaged in cutting timber into ties on the Grabbert property in Calcasieu Parish, Louisiana. He would cut the timber into logs and haul the logs to a sawmill owned and operated by a Mr. Goss. The mill would then cut the logs into ties and plaintiff would haul the ties, in his own truck, to locations specified by Mr. Godair, defendant’s supervisor. Defendant would pay plaintiff at the rate of 650 per tie. Out of said sum, plaintiff would pay a helper at the rate of $25 per week and would pay all gas and oil required in operating the mill and his truck. Goss would receive the trimmings and sidings from the logs as his compensation. Plaintiff had been engaged in these operations for defendant since the latter part of 1948. In said operations he was required to use an axe, cross cut saw, log chain and log hook.

At the time that plaintiff entered the scene of these operations, the cutting of ties was being done at a place called Hecker. The entire operation was then conducted by Goss. Upon being approached by plaintiff, Goss agreed to let plaintiff cut the timber, and both plaintiff and Goss approached Godair with the request that Godair issue a check directly to plaintiff for the number of ties cut, which request was agreed to by Godair at that time. The record also shows that Goss received a certain price per tie while the operations were conducted at Hecker, in addition to the siding- and trimmings. During the beginning of 1949, the exact date is not clear, it appears that all the timber was cut on said tract, and it was necessary to move to a new location. The evidence shows that the arrangements for purchase of the timber on the Gabbert tract was made by Godair. He agreed, with Gab-bert, that payment for timber cut would be by checks on the defendant’s company. It appears that Gabbert and Godair selected the timber to be cut, and an agent of Mr. Gabbert marked the trees to be cut.

Upon moving from Hecker to the Gab-bert tract, it was necessary to move the mill to the new location. Plaintiff testified that the site for setting up the mill on the new location was selected by Godair. Godair testified that he did not select the site, but that he did show plaintiff the extent of the Gabbert tract so that plaintiff would not set up the mill elsewhere and thus be guilty of trespassing. The mill was moved to the new location by plaintiff and Goss.

Defendant’s supervisor, Mr. Godair, went to the scene of the operations approximately once a week. At times he would direct plaintiff as to how the timber should be cut. Gabbert would be paid a stipulated price per tie, depending on the size and the quality of the timber cut. The evidence shows that, at times, deductions were made from plaintiff’s checks for compensation insurance. However, it was not clearly shown whether said deductions were made prior to the accident or subsequent thereto. Nevertheless, the plaintiff was not so covered at the time of the accident.

Plaintiff introduced into evidence statements given him by defendant showing the amount of ties delivered by plaintiff, and the prices therefor. These statements also show stumpage paid Mr. Gabbert. Said statements designate the plaintiff as “producer.” One of the said statements (p-11) contains the following notation:

“Mr. Hebert, you have 11 Pine and 1 Gum which are too long. I will pay you for them Fri. if you will cut them off they are measured and marked.

Hereafter all ties must be stacked prop'erly and the two bottom stringer ties must be on blocks 6 in. above the ground and all bark and spurs removed or I cannot pay for them.”

Plaintiff testified that he earned, prior to the accident, in excess of $50.00 per week. This was after all expenses, such as helper, gas, oil, etc., was deducted. Subsequent to the accident, plaintiff attempted to do the same type of labor. However, due to the injury, his ability to do said labor was greatly reduced, and he was replaced by a Mr. Miller. Plaintiff stated that his earning capacity, subsequent to the injury, was about 50% of what it was prior to the accident. After being replaced by Miller, plaintiff secured a job as janitor; his pay for this was $130.00 per month.

Defendant claims that the relationship ■between plaintiff and defendant was that of vendor and vendee. They ' claimed that plaintiff cut the ties and delivered them to the sites where they were to be picked -up by the railroad companies who purchased the ties from defendant. They admitted that they did suggest, at times, how the ties were to be cut, but that same was done because they would not be able to purchase same from plaintiff otherwise, as the ties had to meet specifications of the railroad companies. They claimed" that their action in paying Gabbert directly for the stumpage cut was merely for the purposes of assuring Gabbert that he would be paid the agreed price, and that same assisted plaintiff in that he was relieved from the necessity of keeping records on the timber cut and having to pay Gabbert from the money received by plaintiff.

We believe that the trial court correctly found the relationship existed between plaintiff and defendant to be that of employer and employee. Although defendant claimed that the relationship was that of vendor and vendee, there are certain matters which lead us to believe otherwise. The record conclusively shows that a certain amount of direction and control was exercised over plaintiff by the agent of defendant. We believe that the evidence shows that defendant could have exercised more control over the operations of plaintiff had they so chosen. It was shown that defendant purchased and paid for the timber which plaintiff cut into cross ties; that defendant’s agent, together with Gabbert, pointed out the trees which plaintiff was to cut; that defendant directed the manner in which the ties were to be cut, hauled and stacked; that the relationship could be terminated at any time by defendant; and that, intermittently during the relationship, deductions were made in plaintiff’s paycheck for compensation insurance. Plaintiff, Goss and Miller, the party who took plaintiff’s place after his discharge, all testified that the timber was purchased by defendant; that they cut same for defendant; and that they were paid by the number of ties cut. Miller testified that he saw Godair, defendant’s agent about taking over the plaintiff’s jo'b. He further testified that, on one occasion, he asked Godair about the tops of the trees which were not cut into ties, whereupon, Godair told him that he could have them if he wanted as they, the defendant, had bought them. The evidence shows that plaintiff did not own the trees or had anything to do in regard to acquiring the ownership thereof, or the ties cut therefrom, and therefore, he could not have sold them as is claimed by defendant; he was merely producing the ties for the defendant.

The case of Deason v. Coal Operators Casualty Co. et al., La.App., 43 So.2d 630, 631, is strikingly similar to the present one. In that case, the relationship was held to be that of employer and employee rather than that of independent contractor, as was alleged by the 'defendant. Plaintiff, in that case, was engaged in cutting wood. He used his own trucks and hired and paid his own help. He delivered the wood to the railroad yard, as directed by defendant, and was paid at the rate of $10.50 per cord. He could be moved from one tract of land to another. The court, in that case, said: “The agreement between the parties was verbal. It involved no specified quantity of wood, no specific length of time, and no particular tract of timber. It is clear that either Mr. Davis or Mr. Deason could have terminated the agreement at will. While it does not appear that Mr. Davis exercised any particular supervision over Mr. Deason’s operations, the Court concludes that inasmuch as he could terminate Mr. Deason’s employment at will, he thereby had the effective power to supervise and control Plaintiff’s operations.”

The court, in the Deason case, then went on to hold that case to be in the same pattern as Collins v. Smith, La.App., 13 So.2d 72 rather than that of Murphy v. Tremont Lumber Company, La.App., 22 So.2d 79. In the Collins case again the facts were very similar to that of the present case. There the court held the right to supervise or control, rather than the exercise of said right as the controlling factor to be the distinguishing factor. In the Murphy case, the agreement between the parties was a written contract, which was very complete and extensive, thus rendering the type of agreement entirely different from the present one.

We are inclined to believe that the facts and the law reviewed above indicate the relationship to be that of employer and employee. The arrangements for cutting the Gabbert timber, and the payment therefor, were made between Godair and Gab-bert. Plaintiff had nothing to do with said arrangement except to cut the timber purchased, i. e. the timber pointed out to him by Gabbert and Godair. The evidence shows that his right to cut the timber depended exclusively on his cutting same for the defendant. We do not believe that he could have sold the timber cut to anyone other than defendant. The evidence shows that, after his injury and resulting disability, he was replaced by Miller by arrangement between Godair and Miller, He left a substantial amount of cut timber in the woods at the time of his discharge, for which he was never paid.

This court stated in the case of Thibodaux v. Sun Oil Co., La.App., 40 So.2d 761, “The compensation statute with its amendments, was designed to cover all employees who might reasonably be brought under its protection, and should be liberally construed to that end, irrespective of whether plaintiffs are attempting1 to recover compensation thereunder or are seeking to recover in tort.”

In view of the facts and circumstances as outlined herein and in view of the authorities herein mentioned and in view of the fact that we are inclined to believe and do believe that there was not a bona fide relationship of vendor and vendee between plaintiff and defendant, but that the relationship between them was that of employer and employee, we therefore conclude under the wording and intention of the Louisiana Workmen’s Compensation Law that plaintiff was an employee of defendant and is entitled to recover from the injury sustained.

As a result of the accident, plaintiff suffered a cut on the thumb of his left hand. Three doctors testified as to the disability of plaintiff, which testimony is conflicting. None of the doctors who testified treated plaintiff for the injury, nor did they make an internal examination of the injury. Each of the said examinations was a short time before trial, at which time the injury had healed, leaving a scar. Dr. Snatic testified that plaintiff suffered a cut through the flesh of the thumb which sheared the periosteum from the bone. Half the tendon was cut. At the time of his examination, flexation or extension of the thumb caused great pain to plaintiff because of adhesion of the tendons. Dr. Snatic further testified that fusion of the tendons to the bones and subcutaneous tissues causes a somewhat frozen joint, and that plaintiff “will always have pain as long as those ad-hesions are not broken away”.

Dr. Kushner testified, that, as a result of the injury, plaintiff has lost 50% of the efficiency of his hand. He, like Dr. Snatic, testified that they believed plaintiff unable to return to timber work requiring use of both hands. Both Drs. Snatic and Kushner testified that the thumb pained plaintiff whenever he attempted to flex same. However, they agreed that there was a possibility that such pain -could be feinted by the plaintiff, and that the restriction of movement of the thumb might be voluntary on the part of plaintiff.

Dr. Hatchette disputed the testimony of Drs. Snatic and Kushner. He testified that movement of the thumb by plaintiff was normal. He stated that there was no reason why plaintiff could not return to the same work he was doing prior to the accident. He estimated the disability to the thumb, giving the plaintiff every benefit of a reasonable doubt, at 10%.

The record as to whether plaintiff was totally disabled to do work of a reasonable character is vague and indefinite. Plaintiff testified that he had been a timber man all his life. Mr. Goss, a witness on behalf of plaintiff, testified that plaintiff was an expert timber man, but that he had hauled wood prior to his employment with defendant. We are not favored with the definition of plaintiff’s conception of an “expert timber man”. The record shows that plaintiff returned to the same work for a period of nine weeks subsequent to the accident. During this time he did substantially the same work as he had done prior to the accident. Had he been incapaciated to do work of a “reasonable character”, we do not feel that he would have been able to do the same work for a period of nine weeks so shortly following the accident. Defendant introduced witnesses who testified that they know several men doing similar work to that of plaintiff with missing arms, fingers, etc. In the absence of more proof to the lack of ability of plaintiff to do work of a reasonable character, we would certainly not be justified in reversing the decision of the lower court on so important a point. The record, we believe, indicates that plaintiff was no more than a common laborer. His work was similar to that under consideration in Scott v. Hillyer, Deutsch, Edwards, Inc., 217 La. 596, 46 So.2d 914, wherein plaintiff was held to he a common laborer, although his work was similar to that of plaintiff herein.

Subsequent to the injury, plaintiff continued at the same work for a period of nine weeks, after which time he secured work as a janitor at $130.00 per month. In Mitchell v. T. J. Moss Tie Co., La.App., 27 So.2d 385, 387, the court said:

“In the instant case, there is abundant proof as to the ability of the plaintiff to continue to work as a common laborer. There is even some persuasive testimony to the effect that plaintiff could continue to perform the work of loading cross-ties, in which labor he was engaged at the time of the injury, and, while we do not accept this as having been completely established, we do find from the facts adduced that plaintiff is not disabled from performing work of a nature and character similar to that in which he was engaged prior to his injury.

“It is required that the plaintiff establish his claim by a preponderance of the evidence, which obligation this plaintiff has failed to fulfill. On the contrary, we find that the evidence definitely preponderates in' favor of the conclusion that plaintiff has not been disabled to the extent of permanent disability to perform work of a similar character to that in which he was engaged.”

During the period from January 7th until April 19th, the date of the injury, plaintiff received checks from defendant in the amount of $990.20. During the three week period in which plaintiff laid off due to the injury, he received two checks totaling $81.80. These checks were obviously for work done prior to the injury, thus making his total gross wages prior to the accident $1072.00. Thus, his weekly gross wages, during the fourteen and one-half week period prior to the accident, was $73.93. During the nine week period subsequent to the accident, plaintiff’s weekly gross wages was in the sum of $63.63. It was shown, that, after the accident, the weather was inclement and that the operations of plaintiff was a greater distance from the mill and in more swampy locations. Therefore, we feel that there was no substantial decrease in the gross earnings of plaintiff subsequent to the accident.

The trial court held that, as a result of the injury, the plaintiff suffered 50‘% loss of the use of his hand. We feel that this finding is substantially shown by a preponderance of the medical testimony. Subsection (5) of paragraph (d) of subsection (1), Section 8 of the Employers’ Liability Act, No. 20 of 1914, as amended, LSA-RS 23:1221 (4)(e), provides: “For the loss of a hand, sixty-five per centum of wages during one hundred fifty weeks.” Subdivision (15), LSA-RS 23:1221(4) (o), provides further that: “In all cases involving a permanent partial loss of the use or function of the members mentioned hereinabove, compensation shall bear such proportion to the amounts named herein for the total loss of such member as the disability to such members bears to the total loss of the member, provided that in no case shall compensation for an injury to a member exceed the compensation payable [under this act] for the loss of such member.”

We, therefore, conclude that plaintiff suffered 50% loss of the use of a hand. Although the expenses of plaintiff for a helper, gas, and oil were in dispute, we believe that said expenses were substantially shown to be about $35.00 per week. Deducting this amount from his weekly gross wages prior to the accident gives him a weekly net figure in the sum of $38.93. Applying the cited subdivisions of the Employers’ Liability Act of this state to the weekly wages of plaintiff, we find that he should have been awarded compensation in the amount of $12.65 weekly during the period of 150 weeks. The remaining portion of the said judgment, concerning medical expenses in the amount of $131.30 is not in dispute.

Accordingly the judgment appealed from is amended 'by decreasing the weekly compensation payments to the .sum of $12.65, and, as so amended, is affirmed at plaintiff’s cost.

Judgment amended and affirmed.

DORE, Judge

(concurring).

This case tenders for decision the question of relationship between the plaintiff and the defendant, that is, whether the relationship was that of employee and employer or vendor and purchaser.

Briefly, I find the essential facts to be:

In the latter part of 1948 plaintiff and a Mr. Goss were engaged in the operation of producing or manufacturing railroad ties at a place called Hecker, in Calcasieu Parish. In this operation, plaintiff would cut timber into logs and haul the logs to Goss’s saw mill. Goss would cut the logs into ties, which ties would be hauled by plaintiff, in his own truck, to a location specified by Godair, defendant’s supervisor and agent. It is shown that Godair had agreed to pay Goss a certain price per tie for such ties delivered and accepted by him at the railroad yards, out of which said price plaintiff was to be paid the sum of 65^ and the remainder of the price was to be paid to Goss. At the end of 1948, the operation ceased for lack of timber.

In the beginning of 1949, Godair was informed by some pulp wood producer that a Mr. Gabbert had some timber on West Fork, Calcasieu Parish, which he, Gabbert, would be interested in converting into ties. Gabbert had the intention of contacting Gross & Janes Company, a firm in the cross-tie business and a rival in business of defendant. In order to be ahead of Gross & Janes Company, Godair contacted Gabbert about the sale of his timber. Gabbert informed Godair that he would sell some of his hardwood and some of the pine to be cut in ties. Godair contracted with Gabbert for the timber on the basis of 25^ per tie stumpage on pine and 20{5 per tie stumpage on the hardwood. Godair obtained from Gabbert his ownership map so he could locate the timber. He and Gabbert thereafter visited the property and marked such pine trees which were to be converted into ties.

Thereafter, Godair contacted plaintiff to conduct a part of the operation. He orally agreed with plaintiff on the basis of so much per tie to be delivered and accepted at the railroad yard at ■ Lake Charles. In the agreement, plaintiff was to cut the timber, haul the logs to the mill, ■cut the timber into ties, haul the ties to the railroad yard and properly stack the ties. He was then to be paid upon the acceptance of the ties.' Plaintiff, not having a saw mill, leased the saw mill of Mr. Goss and removed the mill from Hecker to Moss Fork. I may say at this time that prior to the moving of the mill, plaintiff and Godair visited the scene of operation. The mill site was selected; Godair showed plaintiff the property lines, the pine and hardwood trees to be cut and how far plaintiff’s operation was to extend in that there were two other operators on the Gabbert tract. It was during this operation that plaintiff received his injury which forms the basis of this suit.

The defendant’s sole contention in this case is that the relationship between plaintiff and defendant is that of vendor and purchaser. It is my understanding of our civil law that in order to sustain such a position, a vendor must be the owner of the thing sought to be sold, because the sale of a thing not belonging to the vendor is a nullity. In order to conclude that the ties delivered to the railroad yards were owned by plaintiff, the record must show that the timber from which it was manufactured was owned by the plaintiff. There is not a scintilla of evidence showing that plaintiff, in any wise, can be said to have purchased the timber. The evidence is to the contrary. The evidence is conclusive that Gabbert, the owner of the timber, never contacted or had any business dealings with plaintiff. Gabbert’s contract with regard to the timber, and in fact his only agreement, was with Godair, acting solely as defendant’s agent. According to the defendant, Godair handled the transaction between Gabbert and himself. Defendant states: “Mr. Godair was in contact with Mr. Gabbert and told him (Gabbert) me could likely arrange to h<w.e ties made from this hardwood, which was of a low grade character, and such pine as he might care to have made into cross ties •we could probably arrange it by having mills cut into ties, and to assure Mr. Gab-bert that he would receive payment for the timber removed from his lands, we would guarantee to him we would pay to him directly an agreed stumpage for every tie that was delivered to us and that came from timber owned by him.” (Emphasis mine). Under no stretch of the imagination, in view of the above statement, can it be said that plaintiff was the owner of the ties, a requisite for the relationship of vendor and purchaser; to the contrary it can be said, under the facts, that Gab-bert agreed to allow his timber to be manufactured into ties on what is known really as selective cutting by defendant, Gabbert to be paid so much a tie in the timber manufactured state, he to retain the ownership of the pine tops, and defendant to see that it was so manufactured.

In other words as I view the facts in this case, Ga'bbert agreed with Godair, defendant’s agent, to have certain timber belonging to him to be converted into cross ties; Godair undertook to carry out this agreement by contracting with plaintiff, and two other tie-makers, with that end in view. Godair allotted Gabbert’s timber to three operators, each their own territory; he allotted the southern end of a tract to plaintiff, showed him the lines, helped plaintiff in the location of the mill, pointed out to plaintiff such' timber from which the ties were to be made, and told him to work towards the north to meet the other operator and compensated plaintiff at the agreed rate per tie after the same had been made, delivered and accepted. To me, the same situatión applies as if Godair had told plaintiff, “Here is a definite tract of timber belonging tó Mr. Gabbert, which is to be converted into ties; for your hire, I will pay you so much per tie, less the stumpage to Mr. Gabbert, delivered, stacked and acceptable at the railroad yards at Lake Charles.” Under such an agreement, I am of the firm opinion that the relationship 'between plaintiff and Godair, defendant’s agent, was that of master and servant, or employer and employee.

It may be proper to state that the defendant is not contending that plaintiff was an independent contractor, yet the agreement between plaintiff and defendant has all of the earmarks of such. The reason why such a plea was not tendered by the defendant may well be that Section 3, paragraph 8, of Act No. 20 of 1914, our Compensation Statute, was amended by Act No. 179 of 1948, LSA-RS 23 :1021 (6), so as not to include in the term “Independent contractor” a person who renders manual labor. Undoubtedly the services to be performed by plaintiff in our case involved manual labor, such as cutting the timber into logs, loading and unloading the logs, loading and unloading and stacking the ties. A second reason is that under the well settled jurisprudence of this State, plaintiff would not be classified as an independent contractor, but would be said to be an employee. See Odom v. Lutcher & Moore Lbr. Co., 7 La.App. 458, the cases cited therein and other cases too numerous to be cited.

The defendants have cited many cases to support their contention, including the recent case of Taylor v. Employees Mutual Liability Ins., Co., et al., La.App., 49 So.2d 635. In all of these cases, the Court found that the testimony was without contradiction that the claimant, or his beneficiary, acquired and was the owner of the timber which was converted into logs, I do not find these cases applicable to the facts of this case.

In short, I am in full accord with Judge LOTTINGER’S finding of fact and in the decree handed down. I therefore respectfully concur therein.

ELLIS, Judge

(dissenting).

This is a compensation suit in which the decision is dependent upon a proper appreciation of the proven facts. Being of the opinion that the general statements, or conclusions, of the facts proven as stated in the majority and concurring opinion are in error, I must, therefore, register my dissent.

Plaintiff in his brief concisely sets forth the issue as follows: “The defense made by defendant that plaintiff was a vendor of manufactured ties and that defendant, Stanley W. Gates, is engaged solely and exclusively in the business of purchasing ties and not in the manufacture of them, if true, it logically follows that plaintiff could not be an employee of defendant.”

The record shows that the defendant, prior to any dealings with the plaintiff, was purchasing ties from one E. D. Goss. It is shown that Goss owned a portable saw mill and that he would cut and haul the logs to his saw mill and saw them into cross ties and then haul the cross ties to the railroad tracks and there stack them, and the defendant, approximately once a week, would go to the railroad siding where the ties were stacked, inspect them, and if up to grade and according to specifications, would purchase the ties.

During the time the defendant was purchasing ties from Goss, plaintiff approached Goss and they entered into an agreement whereby plaintiff was to cut and haul the logs to Goss’s mill where Goss would saw them into cross ties, and then plaintiff was to haul the manufactured ties to the railroad siding and stack them. It is shown these ties were sold at the railroad and it was understood that they would come to certain specifications and grades and be stacked in a certain way. Under the arrangement between Goss and plaintiff, the latter was to receive 65‡ per tie and Goss the balance. For example, if the tie under the schedule prices brought $1.30, plaintiff would get 65^ and Goss 655*. If the tie was only worth $1.00, then Goss would receive only 35 ‡. The defendant was not consulted prior to nor at the time that the plaintiff and Goss entered into this agreement. He had nothing to do with it.

The first week that plaintiff worked with Goss under this agreement, the defendant paid Goss for the ties delivered at the railroad track and he in turn paid plaintiff, but plaintiff wanted the defendant to pay him direct, so the matter was discussed with the agent of the defendant who told them it was immaterial to him if that was the way they wanted the checks made. Thus we see that the defendant had nothing to do with employing plaintiff at this time and knew nothing of his agreement with Goss until one week after it had been entered into, and then at Goss’s request agreed to take 65‡ from each tie that they purchased from him and pay it directly to plaintiff.

It is shown that the timber which Goss was manufacturing into ties played out and it was then necessary to obtain more timber, and defendant’s agent located some timber belonging to a Mr. Gabbert. Plaintiff was anxious to continue making ties so he entered into an agreement with Goss to move his mill to the Gabbert timber and rent it on fhe following basis. Plaintiff was to pay all operating expenses of the mill including fuel and labor, and agreed to give Goss all slabs or siding or lumber resulting from the manufacture of the ties as rental.

It is true that defendant’s agent negotiated for the purchase of the timber from Gabbert, but I am of the opinion that it was done for the benefit and on behalf of plaintiff on a pay as you cut basis. It is true that defendant had a selfish motive in assisting these small tie cutters, namely, to keep a large volume of ties coming to their railroad yards where they could purchase them. The record shows that plaintiff knew the timber that was to be cut; that he went into the woods with the agent of the defendant and the agent of the owner of the timber and watched the pine trees which he was to be allowed to manufacture into cross ties being marked with paint. Gabbert sold the timber on what is known as selective cutting. All the hardwood suitable for ties could be cut but the pine was marked. In otherwords, he was in the pole and piling business and retained all pine trees suitable for such purposes. The defendant did not designate the trees to be cut; they were strictly designated by the owner of the timber.

It is true that the defendant retained the stumpage due to Gabbert for the timber cut, but this agreement was based upon the condition that the defendant would hold the stumpage on all ties delivered to and purchased by the defendant which were' cut from the Gabbert tract. In other words, if plaintiff had sold ties elsewhere, which, as I see it, he could have done at the risk of having Gabbert, not the defendant, terminate his timber cutting, under these conditions there was no obligation on the defendant to pay Gabbert. A most reasonable explanation of why the defendant retained the stumpage for Gabbert is given by the agent of the defendant, who made the arrangements for plaintiff to cut the Gabbert timber. In his testimony he stated: “Q. It is set out in Mr. Hebert’s petition that Mr. Gates had the right to select the tract or tracts from which the logs were cut and from which the cross ties were to be made. What do you have to say in connection with that? A. I say that is wrong. Mr. Gates had no right or neither did I, to say where, when or how Mr, Hebert cut ties. We just merely acted there as an advisor, since Mr. Gabbert wanted the ties cut, his time was limited and so forth, and he told me, he said, ‘I will let the timber be cut into ties if you or somebody, someone will deduct the stumpage and pay me.’ He said, ‘I don’t want to be bothered with three or four mills and having to keep up with all them myself.’ He said, ‘I can’t get around to keep up with stumpage and how much they cut.’ He said, ‘That will simplify my problem and let whoever buys the ties deduct the stumpage.’ ”

There were three people cutting and manufacturing ties on the Gabbert land and the defendant was purchasing them. In my opinion, the defendant exercised no control or supervision over the plaintiff in the manufacture of the ties, nor did he have a right to terminate plaintiff’s manufacture of ties from the Gabbert tract. Had defendant told the plaintiff to stop cutting the Gabbert timber, plaintiff would have been within his rights in refusing. It would have been entirely up to Gabbert as to whether plaintiff could have continued his operations.

The record shows that no compensation insurance premiums were deducted from plaintiff’s checks prior to the accident. It is clearly shown by the testimony that this was done subsequent to the accident at the request of the plaintiff.

In my opinion, it is clearly shown that plaintiff, when he first came into the picture, made his own arrangements with Goss, and the defendant knew nothing of it until after it was done. And the next thing we find, plaintiff, at his own expense, moved the, Goss mill to the Gabbert timber and, placed it where he wished and rented the Goss mill and gave away by-products to Goss in payment of the rent. If this timber belonged to the defendant, they would have had something to say about part of it being given away in payment for the rent of this mill. Futhermore, plaintiff employed his own labor, had his own truck, cut when and as he pleased and hauled over any route and as many ties as he wished. Arrangements for the purchase of the timber were made on •behalf of plaintiff, on a pay as you cut 'basis, which was well understood by the latter as well as the owner of the timber. Defendant had no contract with plaintiff; he merely told plaintiff, as well as other tie makers, that “if you will manufacture your cross ties in certain lengths and according to certain specifications and deliver them at points on the railroad as designated by us, we will buy the ties according- to a certain price schedule, in accordance with their grade.”

I do not think the case of Deason v. Coal Operators Casualty Co., 43 So.2d 630, is similar to the present case for the reason that in the Deason case the defense was that the plaintiff was an independent contractor. No such question is raised herein. Secondly, plaintiff cut wood from various tracts as directed by defendant’s agent and could be moved by defendant’s agent at will from one tract to the other. This is not true in the present case. Plaintiff was cutting wood from a tract secured for him, and defendants did not have the right to move plaintiff at will from one tract to the other. Remember that plaintiff could not operate without the Goss mill which he independently rented and operated and which it cannot he denied the defendant had nothing to do with.

Also, in the Deason case, it was held that the defendant had the power or right to terminate at will the work of the plaintiff. In the present case, the only thing the defendant could do was to stop buying ties from the plaintiff. In fact Gabbert, the seller, terminated the cutting by Plaintiff, not the Defendant.

Neither is the present case controlled by Collins v. Smith, 13 So.2d 72, for under the facts in that case the Court held that Smith had the unquestioned right to discontinue the 'services of the deceased at his pleasure or could have required him to haul wood from another location or quit.

I therefore believe under the facts as I appreciate them that the judgment of the District Court is erroneous and should be reversed, for I am of the opinion that the relationship between plaintiff and defendant was that of vendor and vendee and not employer and employee.

I respectfully dissent.  