
    Elie KLINE v. C. W. DAWSON d/b/a C. W. Dawson Equipment Co.
    No. 4103.
    Court of Appeal of Louisiana. First Circuit.
    Nov. 22, 1955.
    Rehearing Denied Dec. 30, 1955.
    Writ of Certiorari Granted Feb. 23, 1956.
    White &’ May, Baton Rouge, for appellant.
    Durrett & Hardin, Baton Rouge, for ap-pellee.
   ELLIS, Judge.

■ Plaintiff has filed this, suit for. workmen’s compensation benefits as a result of injuries received on April 19th .while employed as a caterpillar tractor operator by his brother Joseph Kline,'who was engaged in the logging business.

Plaintiff is seeking to hold liable the C. W. Dawson Lumber. Company and the individual members of this partnership as the principal contractor of his brother, Joseph Kline, together with the insurer of this partnership. There were quite a number of pleadings filed in the case due to plaintiff’s inability to name and cite the proper partners in his first petition. The defendant has filed exceptions based upon a contention that the partnership has never jet been sued and, therefore, the individual members cannot be held liable to judgment.

Because of the fact that we believe the judgment of the lower court should he amended so as to render same on the merits instead of on the exception and as thus amended, affirmed, it is unnecessary to go into the multiplicity of pleadings •or exceptions filed thereto.

It was plaintiff’s contention that Joseph Kline was employed by the C. W. Dawson Dumber Company to haul timber which it had purchased from one Negocia, and that when the plaintiff was injured during the course and scope of his employment while working for his brother, Joseph Kline, the lumber company became liable to him as “principal” under LSA — R.S. 23:1061. The defendant denied' having employed Joseph Kline and denied that the timber which he was hauling had been bought by it or was owned by it and, on the contrary, alleged that Joseph Kline had been employed by Negocia to haul logs which the latter owned and cut from a tract of timber he had purchased, and that the Lumber Company was buying the logs delivered at their mill at a price of $30 per thousand for hardwood and $40 per thousand for cypress, with the understanding that they were to withhold $12 stumpage for hardwood and $13 stumpage for the cypress logs, plus $5 per thousand for cutting the logs for Negocia, the purchaser of the tract of timber and the owner of the logs, and to pay the difference to Joseph Kline who had been employed by Negocia to haul the logs .to the Dawson Lumber Company mill. .

The main question in the case is one- of fact as to whether there was any employer-employee relationship between plaintiff and Dawson Lumber Company, or- whether, as contended by the defendants, there was only a relationship of vendor or vendee or buyer and seller.

At the end of the trial defendants re-urged and refiled their exception of no right of action and the learned Judge of the lower court, being of the opinion that the case was governed by Smith v. Crossett Lumber Co., La.App., 72 So.2d 895, and that there was a relationship of buyer and seller only in the present case, sustained the exceptions of no right of action and dismissed plaintiff’s suit, and it is from this judgment that plaintiff has appealed.

It is shown that a party by the name of Negocia purchased a tract of timber and that he sold some of it to the Dawson Lumber Company and some to one Brunt and one Joe Major. Negocia testified that prior to his purchase of the tract of timber from one Guerin, he was interested- in obtaining a purchaser and that he saw Jack or John Kline, who was engaged in the log hauling business and who was a brother of Joseph Kline, plaintiff’s -immediate employer. It appears that Kline was unable to buy the timber or logs from Negocia but got in touch with the Dawson Lumber Company who told John Kline that they would purchase the logs delivered at their mill for $30 per thousand for hardwbod and $40 per thousand for Cypress. John Kline' then ’told Negocia that they would'pay him $12 a thousand plus $5 per thousand for cutting the logs. John Kline testified that Negocia then asked him who he could get to haul the logs and Kline told him that he couldn’t do it as he was ‘engaged at that time, and John Kline testified he saw his brother, Joseph Kline, and told him that Negocia had this timber for which he was to receive from the Dawson Lumber Company the agreed price and which would leave him $12 and $13 a thousand for the hauling. In other words, under Kline’s testimony there was nothing more nor less than a relationship of buyer and seller. Negocia first stated that he had never hired Joseph Kline to haul- the timber, however,, he-admitted later in his .testimony that Dawson Lumber-- Company did not buy the., tract of- standing timber at all and had only agreed to buy the logs for so much stump-age plus the cutting cost.

Joseph Kline’s testimony is not too impressive and evidently did not impress the trial judge as he depended principally upon ,the testimony of John Kline in arriving at his decision. Robert C. Dawson, Sr., member of the Dawson Lumber Company partnership, testified that John Kline had called him with regard to the Negocia timber and that he told him he would be interested in buying the logs delivered to the mill at a given price of $30 for the hardwood and $40 for the cypress but that they would hold out $12 stumpage and $5 for cutting,'or $17, for Mr. Negocia when they paid Joseph Kline for the logs. The difference, of course, would belong to Kline whom the testimony shows was employed by Negocia and not the Dawson Lumber Company. John Kline’s testimony w.hen considered in the light of the other testimony in the record is convincing that Negocia knew he was to pay for the hauling or to hire the logs hauled to Dawson’s mill. For example, John Kline testified that Negocia asked “me to haul it but I couldn’t.” He-further testified that he and Negocia had -a discussion about who was to haul the logs and the latter asked him if he would find somebody to haul them, and John told him that he would see his •brother, Joseph Kline, which he .did. Joseph Kline practically admits the truthfulness of John’s testimony that the latter saw him and told'him of the Negocia deal and that he wanted somebody to haul the logs and told him the price,. and Joseph Kline did' see -Negocia."

In addition to the facts above discussed the record shows that premiums for compensation insurance was deducted from the check given Joseph Kline for delivering the l'ogs. Plaintiff places great stress upon this fact, ho-wever, being- of the opinion that the facts heretofore discussed reveal a buyer-seller rather than an employet-employee relationship and no Compensation, therefore, being due, it is well' settled that such an erroneous deduction' of k premium for compensation insurance has no binding effect and should be- returned and such a tender was made in the present case. See Franz v. Sun Indemnity Co. of New York, La.App., 7 So.2d 636.

We therefore find the judgment of the District Court to be manifestly correct except that counsel for defendant in answering the appeal asked that the judgment be amended so as to render judgment on the merits rather than on the exception of no right of action, and in the alternative that it be affirmed as rendered. The basis of the defendant’s answer and request for a decision on the merits is contained in the case of Bartholomew v. Impastato, La.App., 12 So.2d 700, which held in effect that motions for judgment, directed verdicts and demurrers to evidence being a procedural pleading of the common law and unknown in • our system may not be invoked in Louisiana by disguising them with the label exception of no right or cause of action, and if the defendant doubted the sufficiency of the evidence presented by the plaintiff to sustain his demand and does not 'see fit to contradict the evidence which has been submitted, he unquestionably.-has the right to have the court determine- the sufficiency of plaintiff's 'evidence by resting his case and in such instances a judgment should be rendered on the merits in favor of one side or the other. . We agree with .this principle of law.

It is therefore ordered that the plaintiff’s suit be dismissed at. his cost and the judgment of the District Court as amended be affirmed.

TATE, Judge.

. I respectfully dissent. In my opinion, as a matter of law, the “go between” who hired plaintiff’s employer to haul logs to the Dawson Lumber Company was legally an agent thereof. .

In my opinion, the majority has correctly found that there was no'employer-employee relationship existing between the C. W. Dawson Lumber Company, and plaintiff’s immediate employer (his brother, Joseph Kline, hereinafter called “Joseph”). But the majority has overlooked the liability of the C. W. Dawson Lumber Company, as principal, to injured employees of independent contractors executing the principal’s business under LSA-R.S. 23:1061. ■

Joseph, plaintiff’s employer, was certainly not a seller of the timber to the Dawson Lumber Company. He was just as certainly an independent contractor engaged to haul the logs to the Dawson Lumber Company mill at New Roads at a base price of $13 per thousand feet, furnishing his own truck, tractor, equipment and labor.

If the majority now contends .that Joseph was hired to do this hauling by Nego-cia (or Nicosia; the owner of the timber), the record indicates to the contrary that Joseph was paid for the' háuling by the Dawson Lumber Company. The District Court found the testimony of Jack Kline (a third brother, hereinafter denoted as “Jack”) more credible than that of Joseph as to how the hauling contract was con-fected. Accepting Jack’s testimony as correct over Joseph’s, t-he strongest inference to be drawn from Jack’s testimony, is that he told his. brother to see Negocia — not Dawson, as Joseph testified — to arrange about the hauling. (Both Negocia and Joseph deny this.)

The record indicates, however, without contradiction that Negocia had offered to sell (or had accepted the lumber company’s continuing counter offer to buy) his timber, cut into logs, at a gross base price of $17 per thousand feet, and Negocia did not pay for the hauling, zvhich was paid for by the Dawson Lumber Company. The Dawson Lumber Company was clearly the party employing Joseph to haul the logs as independent contractor. It is undisputed that Joseph, plaintiff’s employer, was initially told by Jack Kline to go make arrangements with either Negocia or Dawson to do the hauling. Even according to Jack Kline, Negocia was not going to pay for these services since Negocia had simply offered to sell (or accepted a counter offer to buy) at $17 per thousand feet, without reference to payment for the hauling. Negocia could not be the employer, for he was not paying for these services:

Negocia repeatedly denied any part in the confection of the hauling contract (Tr— 80, Tr-84, Tr-87), and he is somewhat corroborated by the undisputed testimony by both Jack Kline and Negocia that insofar as Negocia was concerned, he was only interested in the sale of the logs at a gross price of $17 per thousand feet. It was immaterial either to Negocia or to Dawson .who did the hauling, so long as the logs were hauled; - but it was Dawson, not Negocia, who paid for the hauling.

It should be added that the record, shows Jack. Kline to be a trusted and longtime employee or contractor of the Dawson Lumber Company, still so employed and depending for his livelihood at the time of the trial; which perhaps is one reason his testimony was educed most reluctantly ■insofar as favorable to his brother.

I think the testimony clearly indicates that Jack Kline, although perhaps originally the agent of Negocia to sell the logs at $17 per thousand feet cut, became as a matter of law the agent of Dawson for purposes of accepting this offer (or, perhaps, rather of making a continuing counter offer to purchase same at $17 -per thousand) and for purposes of hiring someone (i. e., Joseph) to do the hauling at a base price of $13 per thousand. For the record indicates without contradiction • that Jack informed Dawson of Negocia’s willingness to sell the logs at $17 per thousand feet cut, that Dawson made a counter offer to purchase same at $30 per thousa'nd' delivered 'at his mill, thereupon constituting Jack Kline as Dawson’s agent for purposes of making this counter offer; that Jack Kline accepted Negocia’s offered price ($17 per thousand feet) on behalf of Dawson Lumber Company, and further independently made the offer at the base price of $13 per thousand feet to Joseph (plaintiff’s employee) to’ do the hauling to Dawson’s mill, still on behalf of Dawson and as Dawson’s agent in' communicating the counter offer; that these arrangements were ratified on behalf of Dawson Lumber Company by R. C. “Bobby” Dawson, Jr.; that subsequently, stumpage for Negocia was withheld by Dawson, and Joseph was paid by Dawson for hauling. In fact, Dawson deducted premiums for compensation insurance coverage from Joseph’s pay, although after the accident these premiums were refunded in an excess credit allowed in a settlement for some logs hauled.

Jack Kline could not possibly be Nego-cia’s ■ agent for . purposes of offering Joseph the contract to haul the logs, because both Negocia and Jack testified that the offer and counter offer between Negocia and Dawson communicated was that of $17 per thousand feet. Negocia never accepted, and so far as the record indicates was never communicated, an offer to sell at a gross price of $30 per thousand, from which Negocia was to pay for the hauling. In my opinion, the evidence indicates that in this transaction, as in general economic activity, Jack Kline was an agent of the Dawson Lumber Company to help them secure logs at their sawmill, and as Dawson’s agent, he arranged on behalf of Dawson both to purchase Negocia’s timber and, separately with Joseph,' to haul it to the Dawson sawmill.

The situation here is easily distinguished from Smith v. Crossett Lumber Co., La.App., 72 So.2d 895, relied upon by the District Court and the majority herein. A buyer-seller relationship was held to exist in the- Smith case where the plaintiff’s employer “secured his own timber, hired his own employees, produced pulpwood, hauled and transported it to the Missouri Pacific Railroad” where it was loaded and sold, 72 So.2d 896. (Italics mine.)

This type of recovery by an employee of an independent contractor against the principal who employed the contractor has been definitely sustained since Seabury v. Arkansas Natural Gas Corporation, 171 La. 199, 130 So. 1. For a reasonably recent case allowing recovery of such an. employee, where the contractor was paid to haul gravel at so much per cubic yard (just as here the contractor was employed to haul logs at so much per thousand feet), see Whitman v. Central Sur. & Ins. Corp., La.App., 41 So.2d 116. See also Malone,. Louisiana Workmen’s Compensation, Chapter 6, Section 121 and Section 122, pages 140 to 144 respectively; see also Section 123’.

For the above and foregoing reasons,, I respectfully dissent from the majority opinion dismissing the suit of this seriously crippled employee. 
      
      . Dawson, appearing on the stand subsequent to the testimony by Joseph that be went to see Dawson to make arrange-. ments to haul Negocia’s logs, did not testify to contradict or to confirm this testimony of the ratification of the employment of1 Joseph by Jack, although he did reply “No” to- a question, “Did you yourself go to Joseph Kline and tell him you wanted” him to haul the logs? (Tr-20.) This is far from a denial that Joseph went 'to see him to make arrangements. '
     