Plaintiff instituted this suit against Crossett Lumber Company and Ernest Vallery and the latter's workmen's compensation insurance carrier, Coal Operators Casualty Company, under the Workmen's Compensation Act, LSA-R.S. 23:1021 et seq., for the maximum provided by statute for permanent and total disability as the result of an accident of May 3, 1952.
This case presents primarily for decision the question of relationship between plaintiff and his immediate employer, Willie E. Smith, Jr., and Ernest Vallery and Crossett Lumber Company, that is whether the relationship was that of employer and employee or vendor and vendee. Plaintiff was in the immediate employ of W. E. Smith, Jr., his
There does not appear to be any controversy as to the material facts of plaintiff's employment. His employment with his son for approximately four months prior to the accident was in the nature of a woods foreman, overseeing the work and engaging actively therein himself, his son being an independent producer of pulpwood, logs and other products. Plaintiff assisted his son in purchasing timber on a tract of land owned by Kurtin Reech, and it was during the working of this timber that an accident occurred, resulting in plaintiff's injuries. Smith, Jr., therefore, secured his own timber, hired his own employees, produced pulpwood, hauled and transported it to the Missouri Pacific Railroad at Pollock, Louisiana, loaded it on cars and sold it, thus delivered and loaded, to Ernest Vallery and J. Broussard. The latter, according to the evidence, was a partner of Vallery in some phases of his operations and particularly the one herein involved. After the wood was transported to the railroad, it was measured and loaded indiscriminately with wood produced by various and sundry other persons from whom Vallery and Broussard were also purchasing wood. Vallery or Vallery and Broussard, in the former's name, billed and shipped the pulpwood so acquired from Smith, Jr., to Crossett Lumber Company at Crossett, Arkansas. A stipulated and agreed price per cord was paid to Smith, Jr., for the pulpwood, after deducting 37 cents per cord as payment for premiums on a workmen's compensation insurance policy issued to and in favor of Ernest Vallery by the Coal Operators Casualty Company, and after withholding the stumpage price of the pulpwood, which was paid directly to the landowner.
There is, therefore, no relationship of employer and employee between Ernest Vallery and plaintiff or with plaintiff's employer. The relationship between Ernest Vallery and Crossett Lumber Company was also that of vendor and vendee. Crossett Lumber Company was a mere purchaser of wood and had no notice or knowledge of who cut, delivered and sold the pulpwood to its vendor. There was, therefore, no semblance of a relationship of employer and employee between Smith, Jr., and Vallery or Vallery and Broussard but a relationship of seller and buyer.
The jurisprudence makes it perfectly clear, in our opinion, that a purchaser of pulpwood is not liable for compensation benefits for accidental injuries sustained by employees of the seller. Wex S. Malone in his work, Louisiana Workmen's Compensation Law and Practice, Section 123, Page 144, in discussing the liability of a principal to employees of independent contractors, clearly expressed this point of law thusly:
The above quoted author's statement is supported by the jurisprudence of this State. Anthony v. Natalbany Lumber Co., Limited, La.App., 187 So. 288; Williams v. George, La.App., 15 So.2d 823; McDonald v. Hammond Box Co., Inc., La.App., 17 So.2d 39, 40. In the latter case Justice LeBlanc stated:
In the case of Taylor v. Employers Mut. Liability Insurance Co., La.App., 49 So.2d 635, this court held in a situation similar to the one now before us that such an arrangement constituted a relationship of vendor and vendee and not that of employer and employee, and there could be no recovery under the Compensation Act. The ruling of this court was affirmed by the Supreme Court in 220 La. 995, 58 So.2d 206, wherein it was held that where deceased, using his own equipment, delivered logs to sawmill under agreement whereby deceased was not required to deliver any definite quantity or quality of logs and no definite time was fixed for life of agreement, and mill company, after logs were accepted and scaled, paid stumpage price to owner of the trees directly and then paid the balance of the price to deceased, relationship between deceased and mill company was that of seller and purchaser and not that of employer or employee or independent contractor within the purview of the Workmen's Compensation Act, and hence deceased's death, caused by falling from his truck, was not compensable.
Counsel for plaintiff fully appreciate and understand the facts of this case and the jurisprudence and principles hereinabove referred to, for in the concluding paragraph of their brief, they say:
Counsel has not pointed out to us the reasons for any differences or distinctions that were or could be made in the facts of the case at bar from those referred to as establishing or supporting the jurisprudence complained about. Our study has not revealed any substantial differences or distinctions which would in our opinion, justify us in departing from such jurisprudence. In fact, the pattern of operation of the parties now before the court was almost identical with that which existed in Taylor v. Employers Mut. Liability Insurance Co., supra.
That the relationship between the parties was a bona fide one, whereby Vallery or Vallery and Broussard were in good faith purchasing pulpwood from Willie E. Smith, Jr., and whereby a similar relationship existed between Crossett Lumber Company and Vallery, or Vallery and Broussard, is not questioned, and there are no facts or circumstances disclosed in the record justifying us in concluding the contrary
The further contention is made by plaintiff that the insurer and Ernest Vallery are estopped to deny liability because of the issuance of the workmen's compensation insurance policy to Vallery and the payment by him and the receipt by the insurer of the premiums therefor. This policy covered the operations of the named insured, Ernest Vallery. The premiums were calculated upon the quantity of wood sold and Vallery paid upon all wood sold by him, including that purchased from Willie E. Smith, Jr., and in connection with which plaintiff performed his services.
This question has been disposed of adversely to plaintiff's contention. For instance, the Court of Appeal for the Parish of Orleans in the case of Franz v. Sun Indemnity Co. of New York, 7 So.2d 636, 638-639, through Judge Janvier as the organ of the court, stated:
"See also Rutland v. General Accident Fire & Life Assur. Corp. [La. App.], 200 So. 486, 488, in which our brothers of the First Circuit said: `* * * there only remains now the question as to plaintiff's right of action against the defendant, insurance company, Gillespie's surety under the contract of insurance. That question might be the source of further controversy in the case were it not for the fact that the Supreme Court has already specifically held that where an employee has no right of action under the Statute against the employer, he has none against the employer's surety. This ruling was made in the case of Benjamin v. Standard Accident Insurance Co., 152 La. 874, 94 So. 428. * * *'
"There is then no estoppel * *."
If there is no liability on the part of Vallery as the purchaser of wood from the employer to pay compensation benefits to the employer's employees, by the same token and reasoning there is no legal liability on the part of Crossett Lumber Company, which was likewise a purchaser of pulpwood from the original vendee, Vallery.
The insurance carrier is only liable when the insured is liable. Hence, as we have held that Vallery was without liability, there could be no liability on the part of his insurer, Coal Operators Casualty Company.
As was said in Benjamin v. Standard Acc. Ins. Co. of Detroit (in Re Benjamin), 152 La. 874, 94 So. 428, 429 which was a suit for workmen's compensation benefits by an employee who received injuries while making cigars by hand, and wherein it was admitted the defendant was the workmen's compensation insurer for plaintiff's employer:
A similar situation was presented with a like effect in the case of Rutland v. General Accident Fire & Life Assur. Corporation, Limited, of Perth, Scotland, La.App., 200 So. 486. An exception of no cause and no right of action was filed by the defendant and sustained by the lower court. In its opinion affirming the judgment of the trial court, the Court of Appeal was correctly quoted by Judge Janvier as given
A final defense urged by defendants is the want of proper party defendant. The insurance contract was issued to Ernest Vallery individually to cover his individual operation and suit was directed against him individually. The facts developed on the trial of the case that the business was being operated by a partnership composed of Ernest Vallery and John L. Broussard, and it was to this partnership that the employer sold his wood. The partnership was not made a party to this litigation, hence the basis for this contention. On this point the Supreme Court had before it the case of Dupre v. Coleman, 143 La. 69, 78 So. 241, 242. The business was operated as a partnership in the name of R. H. Coleman and Company, composed of defendant and his father. The defendant excepted on the ground that he individually was not liable for the debts of the partnership. The lower court and the Supreme Court sustained the exception. In its opinion the latter stated:
Our conclusion is that there is no liability on the part of Vallery as the purchaser of wood from plaintiff's employer for compensation benefits to plaintiff resulting from injuries sustained by him while performing services in procuring pulpwood so sold and purchased or on the part of Vallery's vendee, Crossett Lumber Company, which likewise was a purchaser of said products, or by Vallery's compensation insurer, Coal Operators Casualty Company, as the insured was without liability, and that both insured and insurer are not estopped from denying liability by the fact of the issuance of the policy and protection to the purchaser covering his individual operations, and that accordingly the judgment of the district court sustaining the exception of no right of action is correct.
The judgment appealed from is, therefore, affirmed.