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02/24/98 JAMES HOWARD FORD v. REED RUSHING

JAMES HOWARD FORD, NATURAL FATHER AND, APPELLANTS NEXT ADULT FRIEND OF JAMES C. FORD, A MINOR, FOR AND ON BEHALF OF JAMES C. FORD AND NATASHA FORD
v.
REED RUSHING, A/K/A REIID RUSHING, AND, APPELLEES WALTHALL WOOD PRODUCTS, INC.



Before: McMILLIN, P.j., Hinkebein, And Coleman, JJ.

The opinion of the court was delivered by: Coleman, J., For The Court:

DATE OF JUDGMENT: 02/19/96

TRIAL JUDGE: HON. JERRY OWEN TERRY, SR.

COURT FROM WHICH APPEALED: STONE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - PERSONAL INJURY

TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT DISMISSING REED RUSHING, A/K/A REED RUSHING, AND WALTHALL WOOD PRODUCTS, INC., AS DEFENDANTS

DISPOSITION AFFIRMED - 2-24/24/98

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

The Circuit Court of Stone County granted Reed Rushing and Walthall Wood Products, Inc.'s motion for summary judgment in the matter of the complaint which the appellants filed against them for the wrongful death of Vina Dale Ford Flores, mother of James Howard Ford and Natasha Ford. Ms. Flores was killed when an empty log truck being driven by Norman C. Connerly collided with the pick-up which she was driving. The issue on which the circuit court granted summary judgment was whether Connerly was an employee of Rushing and Walthall Wood or, instead, an independent contractor. We affirm the circuit court's grant of summary judgment because we find that there was no genuine issue as to any material fact relevant to whether Connerly was an independent contractor.

I. FACTS

A. Cause of action

On October 15, 1990, Connerly hauled a load of logs from a tract of land located in Slidell, Louisiana, which belonged to Walthall Wood Products, Inc. (Walthall), to a lumber mill located in Wiggins, Mississippi. Shelton Dantzler was harvesting the timber for Walthall, a Mississippi corporation. During his return from the lumber mill to Walthall's tract of land, Connerly collided with the pickup which Vina Dale Ford Flores was driving. Ms. Flores's two children, James C. Ford and Natasha Ford, were in the pick-up with her. Ms. Flores was killed, and both of her children were seriously injured.

B. Relation of Connerly to Rushing and Walthall

Connerly and Rushing had been friends since they were in high school. Connerly paid Rushing $8,000 for a used cab-over diesel truck and a log trailer so that Connerly might begin hauling logs. Walthall Citizens Bank loaned Connerly the full amount of the purchase price. Included in the consideration for Connerly's purchase of the truck and log trailer was Rushing's agreement to pay for certain repairs to the truck. The bank's collateral for the loan consisted of a lien on the truck, trailer, and Connerly's pick-up truck. In addition, Rushing signed the note as surety for the repayment of Connerly's debt. When the loan was closed at the bank, Connerly endorsed the loan-proceeds check and handed it to Rushing.

Rushing owned ninety percent of the stock in Walthall and was its president. Between May of 1990 and October 15, 1990, Walthall bought and harvested no less than thirty-five tracts of timber in Louisiana and Mississippi. Walthall hired various loggers to harvest and transport its timber from these tracts to lumber mills. Rushing and his loggers executed contracts by which the loggers agreed that they were independent contractors and that they, the loggers, would require all their truckers to carry liability insurance on their log trucks. Walthall's contracts with its loggers required its loggers to insure that each of their log-truck drivers furnished Walthall and the logger a certificate of liability insurance.

Shelton Dantzler was among the eight persons whom Rushing identified as loggers with whom he had contracted to harvest and transport Walthall's timber. In response to Dantzler's telephone conversation with Rushing, during which Rushing told Dantzler that he knew a man who would haul logs for Dantzler and gave Dantzler Connerly's telephone number, Dantzler called Connerly and hired him to haul logs which Dantzler had harvested from Walthall's tract of land in Louisiana. However, after Connerly allowed the liability insurance on his truck to lapse, Eugene Matthews, the timber cruiser for Walthall, advised Connerly that he could no longer drive for any of Walthall's loggers until he obtained liability insurance on his truck. When Connerly renewed the liability insurance coverage on his truck, Rushing allowed his loggers, like Dantzler, to employ Connerly.

Dantzler, not Rushing and not Walthall, paid Connerly for hauling the logs. Connerly was paid proportionately to the tonnage of the loads of logs he hauled. Connerly bought the fuel for his truck and paid for all of its repairs except for those repairs which Rushing had agreed to pay when he sold Connerly the truck. The depositions of Rushing, Dantzler, and Connerly make it clear that Connerly determined the number of loads of logs he hauled each day and even whether he worked on any particular day. Connerly was free to select the route he traveled from the logging tract to the mill and back, but his choice of route was affected by the usual economic factor of distance traveled between the two sites. The record in this case demonstrates that the Fords were unable to develop any evidence that either Rushing or Walthall paid Connerly for hauling logs in Connerly's truck. The record in this case further reveals that the Fords were unable to develop that either Rushing or Walthall controlled Connerly's activity as he hauled Walthall's logs to the mills.

II. LITIGATION

Acting for and on behalf of James C. Ford and Natasha Ford, his natural children, James Howard Ford filed a complaint against Connerly, Rushing, and Shelton Dantzler Logging Company (Dantzler) in the Circuit Court of Stone County to recover damages for the wrongful death of Vina Dale Ford Flores and for injuries to her son, James C. Ford, caused by the collision of the log truck driven by Connerly with the pick-up driven by Ms. Flores. In his complaint, James Howard Ford charged that Connerly negligently operated the log truck, the proximate consequence of which was the death of Ms. Flores and the injuries to his son, James C. Ford. Ford then charged that Rushing and Dantzler were responsible for his negligence through the theory of respondeat superior. Eventually, the Fords amended their complaint to include Walthall Wood Products, Inc., as a defendant on the same theory of respondeat superior.

Rushing and Walthall moved for summary judgment. They asserted that because Connerly was an independent contractor - and not their employee - they were not liable for Connerly's negligent operation of his log truck. After the circuit Judge heard the respective arguments of the parties on Rushing and Walthall's motion for summary judgment, he rendered his quite detailed findings of fact and extensive Conclusions of law from which he determined that "there no material issue of fact as to the employment status of either Connerly Dantzler and that the Defendants, Reed Rushing and Walthall Wood Products, Inc., are entitled to udgment as a matter of law pursuant to Miss. R. Civ. P. 56(b)." The circuit Judge then entered a judgment of dismissal with prejudice as to defendants, Reed Rushing and Walthall Wood Products, Inc. However, he further ordered that "the Plaintiffs' cause of action against all other Defendants not specifically dismissed hereby shall continue until further order of the Court."

The Fords appealed from the summary judgment in favor of Rushing and Walthall, but on Rushing and Walthall's motion to dismiss, the supreme court dismissed their appeal because the circuit court had not entered a final judgment. The lack of a final judgment rendered the appeal interlocutory in nature. In the spring of the following year, the Fords settled with the remaining defendants, Connerly and Sheldon Dantzler Logging Company. The settlement with the remaining defendants rendered the summary judgment final, so the Fords have again appealed from the circuit court's order which dismissed with prejudice their complaint against Rushing and Walthall.

III. REVIEW, ANALYSIS, AND RESOLUTION OF THE ISSUES

We quote the Fords' issues from their brief:

1. Did the Circuit Court err in finding as a matter of law that Norman C. Connerly, Jr. was an independent contractor and not an employee of Reed Rushing and Walthall Wood Products, Inc., therefore dismissing these defendants from the action?

2. Did the Circuit Court err in finding as a matter of law that Reed Rushing was entitled to a dismissal from this action?

A. Summary Judgment

1. Standard of Review

An appellate court in Mississippi reviews a trial court's decision to grant summary judgment de novo. Spartan Foods Systems, Inc. v. American Nat'l Ins. Co., 582 So. 2d 399, 402 (Miss. 1991); American Legion Ladnier Post 42, Inc. v. Ocean Springs, 562 So. 2d 103, 105 (Miss. 1990); Daniels v. GNB, Inc., 629 So. 2d 595, 599 (Miss. 1993). "The evidentiary matters-admissions in pleadings, answers to interrogatories, depositions, affidavits-are viewed in the light most favorable to the nonmoving party, as he is given the benefit of every reasonable doubt." Spartan Foods, 582 So. 2d at 402. The central focus of the review of an order granting summary judgment is whether there was "no genuine issue of material fact." Erby v. North Miss. Med. Ctr., 654 So. 2d 495, 499 (Miss. 1995). A fact will be considered to be material if it has any tendency to decide any of the issues of the case which have been properly raised by the litigants. Pearl River City Bd. of Supervisors v. S. E. Collections Agency, Inc., 459 So. 2d 783, 785 (Miss. 1984).

If the appellate court finds beyond a reasonable doubt that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law, it will affirm the trial court's decision to grant summary judgment. Spartan Foods, 582 So. 2d at 402; Yowell v. James Harkins Builder, Inc., 645 So. 2d 1340, 1343 (Miss. 1994). However, if it finds that there are disputed issues which are material to the case, the appellate court will reverse, for the purpose of a motion for summary judgment is not to resolve issues of fact but to determine whether issues of fact exist. Spartan Foods, 582 So. 2d at 402; American Legion, 562 So. 2d at 106. Above all, a trial court should take great care in granting a motion for a summary judgment. Palmer v. Anderson Infirmary Benevolent Ass'n, 656 So. 2d 790, 794 (Miss. 1995). If the trial court is doubtful as to whether a genuine issue of material fact exists, it should deny the motion for summary judgment. American Legion, 562 So. 2d at 106; Daniels, 629 So. 2d at 599.

2. Burdens of Production and Persuasion

Summary judgment will be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c); Spartan Foods, 582 So. 2d at 402. The burden of persuasion is on the movant to show that (1) there is no existing genuine issue of material fact "on each element of his claim or defense" and that (2) he is "entitled to judgment as a matter of law." American Legion, 562 So. 2d at 106; Webster v. Mississippi Publishers Corp., 571 So. 2d 946, 949 (Miss. 1990). This is a burden of "production and persuasion;" it is not actually a burden of proof in the true sense of the word. Yowell, 645 So. 2d at 1343.

On the other hand, the opposing party only has to demonstrate that a genuine issue of material fact exists to withstand the test of summary judgment. Spartan Foods, 582 So. 2d at 402. However, where the party opposing the motion would shoulder the burden of proof at trial, he must produce "supportive evidence of significant and probative value" to defeat the motion for summary judgment. Daniels, 629 So. 2d at 600. The non-movant is obliged to rebut the movant's assertions by producing particular facts which demonstrate that there is a genuine issue of material fact; he cannot rely solely ...


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