Banks v. Ellijay Lumber Co
| Decision Date | 05 December 1938 |
| Docket Number | No. 26989.,26989. |
| Citation | 200 S.E. 480,59 Ga.App. 270 |
| Parties | BANKS. v. ELLIJAY LUMBER CO. |
| Court | Georgia Court of Appeals |
Rehearing Denied Dec. 17, 1938.
Syllabus by the Court.
1. Only employees who are servants' fall within the definition of an employee entitled to compensation under the workmen's compensation act. Code 1933, § 114-101 et seq.
2. A claimant, seeking compensation under the act, carries the burden of showing, not only that the accident arose out of and in the course of the employment, but that the person injured, for whose injury compensation is claimed, was at the time a servant of the employer against whom compensation is claimed.
3. Where the contract provides that the person employed is to do a definitely described piece of work in a specified manner, according to specifications for a stated sum, the contract may be one establishing the relationship of master and servant, or that of employer and independent contractor, according to whether, as a matter of fact, the employer had the right to direct the time, manner and method of the employee's performance of the work, or whether the employee could perform the work free from control and direction of his employer as to the time, manner, and method of the performance of the work.
4.On the trial of a claim for compensation, where it appears from the evidence that where a person is employed to saw lumber from timber belonging to his employer, and the employer furnishes the mill and the person employed hires his own help, pays for it out of his own money, with the right to direct his help in the performance of the work, and at his pleasure to discharge them, and where it does not appear that his employer had at any time ever given directions as to the time, manner and method of the performance of the work, and it does not appear that the employer had the right under the contract to do so, and where all the other acts per-formed by the employer and employee in the carrying out of the contract are consistent with the theory that the contract establishes the relationship of employer and independent contractor, it is not thereby established that the relationship between the employer and the employee is that of master and servant, and the director of the Department of Industrial Relations is not authorized to so find. Evidence that the employer at one time stated to the employee that he would like to see the mill saw lumber, and told him to start up the mill, that the employer claimed the right to discharge the employee for non-performance of the contract, that the employer paid for repairs on the mill either of a temporary or permanent nature, that on one occasion he paid the expenses of moving the mill from one place to another for his employee, where it appears without contradiction that the employer had never at any time undertaken to control the operations of the mill, does not authorize a finding that the employer had at any time directed the time, the manner, and the methods of the performance of the work.
Error from Superior Court, Gilmer County; J. H. Hawkins, Judge.
Proceeding under the Workmen's Compensation Act by J. G. Banks, claimant, opposed by the Ellijay Lumber Company, alleged employer. To review a judgment sustaining the alleged employer's appeal from an award of the Department of Industrial Relations granting compensation, the claimant brings error.
Affirmed.
Howell Brooke, of Canton, for plaintiff in error.
J. S. Wood, of Canton, and A. H. Burtz, of Ellijay, for defendant in error.
John G. Banks filed a claim with the Department of Industrial Relations for compensation under the workmen's compensation act, Code 1933, § 114-101 et seq., against Ellijay Lumber Company. It appeared from the evidence that the claimant was injured while working as an employee at a sawmill belonging to the defendant. It appeared without contradiction from the evidence that the defendant had employed Luther Parks to operate a sawmill belonging to it, and to saw lumber belonging to the defendant and put it in sticks, for which Parks was to be paid at the rate of $3 per thousand feet, that Parks employed his own help, among whom was the claimant, and paid them out of his own money; that he had full control and authority over his help and could fire them. Other portions of the evidence as may be material to this court's consideration of the case will be stated and referred to in the opinion. The defendant contended that the claimant Banks was not an employee of the defendant, but was an employee of Parks who was an independent contractor, and that therefore the claimant was not entitled under the workmen's compensation act to compensation from the defendant. It is admitted that the injury arose out of and in the course of the employment.
The controlling question for determination on the hearing before the director of the Department of Industrial Relations was whether or not the relationship between the defendant and Parks was that of employer and independent contractor or that of master and servant. The director found that the relationship between the defendant and Parks was that of master and servant, and that therefore the relationship between the claimant and the defendant was that of master and servant, and that the claimant was entitled to compensation. The director awarded compensation. This award was approved by the full board. From this award, the defendant appealed to the superior court. The superior court sustained the appeal, holding that the relationship between the defendant and Parks was that of employee and independent contractor, and vacated and set aside the award. To this judgment the claimant excepted.
The true test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contradistinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner and method in the performance of the work. Zurich General Accident & Liability Ins. Co. v. Lee, 36 Ga. App. 248, 136 S.E. 173; Irving v. Home Accident Ins. Co., 36 Ga.App. 551, 137 S. E. 105; Home Accident Ins. Co. v. Daniels, 42 Ga.App. 648, 157 S.E. 245; Bentley v. Jones, 48 Ga.App. 587, 173 S.E. 737; Liberty Lumber Co. v. Silas, 49 Ga.App. 262, 175 S.E. 265; Yearwood v. Peabody, 45 Ga.App. 451, 164 S.E. 901.
Only employees who are servants fall within the definition of an employee entitled to compensation under the workmen's compensation act. A claimant seeking compensation under the act carries the burden of showing not only that the...
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