Aetna Cas. & Sur. Co. v. Daniel

• Decision Date: 11 October 1949
• Docket Number: 32567.
• Citation: 55 S.E.2d 854,80 Ga.App. 383
• Court: Georgia Court of Appeals
• Parties: AETNA CASUALTY & SURETY CO. et al. v. DANIEL et al.

55 S.E.2d 854

80 Ga.App. 383

AETNA CASUALTY & SURETY CO. et al. v. DANIEL et al.

No. 32567.

Court of Appeals of Georgia, Division No. 2.

October 11, 1949

Rehearing Denied Nov. 8, 1949.

Syllabus by the Court.

The court did not err in affirming and sustaining the award and judgment of the State Board of Workmen's Compensation. There is sufficient evidence to support this judgment and award. This being true, this court is without authority to reverse the judgment and award.

On March 13, 1948, the deceased was engaged by Kelly's Laundry and Dry Cleaning Company and Whitehill Laundry. While so employed, it was the duty of the deceased to pick up laundry or dry cleaning from customers, deliver the same to the laundry or dry cleaning company to be processed, and then return the laundry or dry cleaning to the customer. At the time of the injury incurred by the deceased on March 13 1948, which injury resulted in his death of March 22, 1948 he was in the act of delivering a suit of clothes which had been cleaned by, and which bore the tag of Kelly's Laundry and Dry Cleaning Company, and a bundle of clothes which had been laundered by, and which bore the tag of the Whitehill Laundry. Kelley's Laundry and Dry Cleaning Company, plaintiff in error here, defendant in the court below, we shall hereinafter refer to by name. There is also another case in this court at the present time, Whitehill Laundry v. Daniel, et al., Ga.App., 55 S.E.2d 861, which is closely associated with the case at bar, and will be controlled by the ruling in the instant case, as will appear from the decision written in that case this date.

The Aetna Casualty and Surety Company is also a plaintiff in error in this court, and a defendant in the court below. We shall hereinafter refer to this company as the insurance carrier. Mrs. Helen H. Daniel, widow of the deceased, appears here as a defendant in error, plaintiff in the court below. We shall hereinafter refer to Mrs. Daniel by name, and Whitehill Laundry, the other defendant in error here, plaintiff in the court below, shall hereinafter be referred to as the Whitehill Laundry.

The voluminous evidence, as developed by the hearing before the single Director resulted in an award in favor of the widow Daniel. The statement of the Director in what he terms 'findings of fact, conclusions of law and the award' based thereon read as follows: 'The primary question for determination in the instant case is whether or not C. H. Daniel was an independent contractor or a joint employee of the Whitehill Laundry and Kelley's Laundry and Dry Cleaning Company, on March 13, 1948, when he received injuries from an automobile driven by a third party while he (Daniel) was in the act of making deliveries of laundry and dry cleaning which had been cleaned by both of these defendants herein and from which C H. Davis [Daniel] succumbed to the injuries sustained on March 22, 1948.

'Quite a voluminous record of evidence is contained as well as a lot of documentary evidence. This deputy director who heard the entire case desires to point out several salient factors which came out in the evidence. The now deceased Daniel owned his own truck and the evidence shows that he had a route which he traversed and picked up both laundry and dry cleaning from customers on this prescribed route and brought the laundry to Whitehill Laundry in Atlanta, Georgia to be cleaned, as well as bringing the dry cleaning to Kelley's Laundry and Dry Cleaning Company in Atlanta to be cleaned. After this was done both these defendants, according to the testimony adduced, had one of their employee's to insert on a ticket bearing the name of their respective places of business, the amount of money due for the respective laundry and dry cleaning for the individual customer and customers of Daniel. Mr. Daniel had to accept the figures and the amount charged by these defendants. As a matter of fact, Mr. Daniel settled with these defendants based upon the figures that were made at the direction of employee's of these respective defendants. The evidence is very clear to the effect that Whitehill Laundry received 65 per cent. for the work done based upon their figures and charges of a retail price and the evidence further shows conclusively that Kelley's Laundry and Dry Cleaning received 60 per cent. of the gross amount based upon the figures and charges of the retail price as made and inscribed on its own slips and these figures and charges being made by an employee of the Kelley Laundry and Dry Cleaning Company and at the direction of the owner of these defendants herein, and under their control. In order for the master and servant doctrine to exist according to the statute, the employer must retain the right to direct or control the time and manner of the execution of the work. An independent contractor becomes an employee of the owner by interference of the owner with the method or means of doing the work. Certainly, in the instant case these defendants who were joint employers, of C. H. Daniel, on March 13, 1948, exercised the right of prescribing the method and means of doing the work, in that they set the price of their laundry and dry cleaning which Daniel brought into their respective places of business and based upon these prices they received the aforementioned 65 per cent. and 60 per cent. based upon their own figures. These defendants certainly retained the control of Daniel as to the amount to be charged and collected as their retail prices. An employer is liable if he assumes control of work being done by an independent contractor as to create the relation of master and servant.

'An assumption of control does not necessarily create the relation of master and servant, but it is a degree of control that either may exercise.

'This hearing Deputy Director was particularly impressed by the fact that both of these defendants offered testimony to the effect that they received financial gain as a result of doing business with Daniel. It is quite true that these defendants classified Daniel both as an independent driver and as a wholesale customer. This hearing Deputy Director is unable to subscribe to these defendants' theory. Another coincidence from the evidence adduced is the fact that Daniel's route No. 5 appeared on the records of both of these defendants. When questioned by the undersigned neither of these defendants could satisfactorily explain why Daniel had the same route number; that of No. 5, with both of these defendants.

Therefore, I have the right to believe and to assume that both of these defendants were of one accord in both their opinion of and dealings with Daniel as to Daniel bringing them business on a prescribed rural route outside of metropolitan Atlanta; wherein both of the places of business are located.

'These defendants were not primarily interested in the customers of Daniel, but they were primarily interested in the increase of business and the building up of the route by Daniel as the evidence clearly shows.

'At the beginning of this hearing, it was brought out that it was contended that Daniel solicited hats to be cleaned from his customers on his route and carried them to the Emporium Dry Cleaning Company. This hearing Deputy Director lent an attentive ear to the testimony with the expectation that an official of the Emporium Dry Cleaning Company would offer testimony to substantiate their contentions. It is quite true that defendants did bring one Roy Robinson, who is now the general manager of the Emporium Dry Cleaning Company to offer testimony. Robinson testified that he was not the manager of this establishment on March 13, 1948, even though he is now. He further testified that this establishment was in business on March 13, 1948, and said that its manager was one Joe Hubie. I cannot understand why defendants did not offer the court the benefit of the testimony of Joe Hubie. Since defendants did not, I am constrained to discredit altogether any contention or assumption that Daniel had any business connections with the Emporium Dry Cleaning Company, at the time of his injury which produced his subsequent death. This is furthermore believable on the part of this hearing Deputy Director based upon the testimony of Mr. Kelley to the effect that he saw Emporium tickets on bundles of laundry in Daniel's truck, when it appeared upon the premises of Kelley's Laundry and Dry Cleaning Company. Then, in the next breath, Kelley testified that his connections with the Kelley's Laundry and Dry Cleaning Company was to handle the cash and he did not handle the receiving of the dry cleaning from Daniel's truck. An employee includes every person in the service of another under any contract of hire or apprenticeship, either written or implied. Another thing that impressed the undersigned was the testimony of Mr Kelley wherein he said that after the death of Mr. Daniel that he personally went up in the vicinity of Mr. Daniel's route and remained there for approximately two hours for the purpose of securing an individual to take over this route. Mr. Kelley did secure an individual to take over this route. That clearly shows again that Mr. Kelley did not desire to lose business and cease making the money that he had been making as a result of Daniel's efforts on this route in securing dry cleaning business for Kelley's Laundry and Dry Cleaning Co. Kelley further testified that one Mr. Turner was now an employee of his, and that his name appeared on the payroll. He stated that his contract with Mr. Turner was that Turner received 20 per cent. commission on all dry cleaning Turner brought to him from this prescribed route; it being the same route as traversed by Daniel during his lifetime. He further stated that he furnished Turner with a...