United States Fid. &. Guar. Co v. Corbett

• Decision Date: 03 October 1923
• Docket Number: (No. 14477.)
• Citation: 119 S.E. 921,31 Ga.App. 7
• Court: Georgia Court of Appeals
• Parties: UNITED STATES FIDELITY &. GUARANTY CO. v. CORBETT et al.

31 Ga.App. 7

119 S.E. 921

UNITED STATES FIDELITY &. GUARANTY CO.

v.CORBETT et al.

(No. 14477.)

Court of Appeals of Georgia, Division No. 1.

Oct. 3, 1923.

Rehearing Denied Nov. 14, 1923.

(Syllabus by the Court.)

Error from Superior Court, Berrien County; R. G. Dickerson, Judge.

Proceeding by Fannie Corbett, under the Workmen's Compensation Law, to recover for the death of her husband, C. E. Corbett, opposed by the Berrien Lumber Company, employer, and the United States Fidelity & Guaranty Company, insurance carrier. An award of the Industrial Commission was sustained by the superior court, and the insurance carrier brings error. Reversed.

Bryan & Middlebrooks and W. R. Tichenor, all of Atlanta, and W. D. Buie, of Nashville, for plaintiff in error.

John P. & Dewey Knight, of Nashville, and H. E. Oxford, of Ocilla, for defendants in error.

LUKE, J. Mrs. Fannie Corbett brought proceedings under the Georgia Workmen's Compensation Act (Laws 1920, p. 167) against E. C. Bruce, Berrien Lumber Company, and United States Fidelity & Guaranty Company, to procure an award for the death of her husband; O. E. Corbett. The Industrial Commission found that Bruce was not a subcontractor, and was little more than an employing foreman; that Berrien Lumber Com pany was the real employer of the deceased; and that an award be had against United States Fidelity & Guaranty Company, the insurance carrier for the lumber company, in favor of Mrs. Corbett, for herself and her two minor children, in the sum of $5 a week for 300 weeks, and for burial and medical expenses. The case was appealed to the superior court, and Judge Dickerson, to whom the entire matter was submitted by agreement, sustained the award of the commission.

We will recite only so much of the evidence as is necessary to a clear understanding of the case:

Berrien Lumber Company was operating a sawmill, of which J. M. Willis was manager. Located adjacent to the mill and on the same premises was a lath and shingle mill owned by said company, and engaged in manufacturing laths and shingles from slabs and scrap timber from the sawmill. This shingle mill was operated by E. O. Bruce and his employees. Corbett was killed while engaged in his duties in operating the lath-making machine. Willis testified to the following oral contract between the lumber company and Bruce:

"The Berrien Lumber Company furnished the machinery and material, and Mr. Bruce furnished the labor, and we divided what we made fifty-fifty."

The lumber company's compensation insurance included all the workmen of the mill except those employed by Bruce. Bruce's impression was that be was to have control of the lath and shingle mill until January 1, 1922, but the lumber company shut down that mill on September 1, and it was not afterwards operated by Bruce. Bruce also thought the lumber company had the right to terminate his contract at any time and discharge him, but Willis swore that as manager of the lumber company he had no such right, unless Bruce refused to operate the mill. Willis further testified that he did not consider that he had the right to give Bruce instructions as long as he complied with his contract, and that he never had any occasion to criticize or advise him. The lumber company usually sold the output of the lath and shingle mill and gave Bruce one-half of the proceeds. Occasionally Bruce sold some of the laths and shingles himself, but, as a matter of fact, each had the right to take one-half of the products of the lath and shingle mill and sell them, and neither, as a matter of right, could sell the laths and shingles of the other. Bruce swore that he discussed with Willis the best manner of operating the lath and shingle mill, but that he supposed he was the final authority as to running that part of it; that as to the furnishing of timber and the manner of handlingit the lumber company would probably bo final authority, but that he supposed he had sole direction as to laths and shingles. Bruce hired, paid off with his own...