Amear v. Hall

• Decision Date: 06 October 1982
• Docket Number: No. 64499,64499
• Citation: 164 Ga.App. 163,296 S.E.2d 611
• Parties: AMEAR v. HALL.
• Court: Georgia Court of Appeals

Page 611

296 S.E.2d 611

164 Ga.App. 163

AMEAR v. HALL.

No. 64499.

Court of Appeals of Georgia.

Oct. 6, 1982.

Rehearing Denied Oct. 28, 1982.

Brian N. Smiley, Thomas B. Branch, III, Gordon Hiles, Sharon Rowen, Atlanta, for appellant.

Richard G. Greer, J. Blair Craig III, Atlanta, for appellee.

QUILLIAN, Chief Judge.

Plaintiff, Tom Amear, appeals from a jury verdict and judgment for defendant Dr. George Hall. Dr. Hall, a radiologist, normally worked from 8:00 a.m. to 6:00 p.m. on weekdays, and frequently on weekends. He stated that he had neither the time nor the capability for household maintenance work and hired someone to do anything that needed to be done. He asked a nursery to recommend someone to do landscaping work and was referred to Ivan Davey--the partner of plaintiff Amear. Hall and Davey discussed his employment in January, 1977. No written contract was entered into. Hall would tell Davey what needed to be done and Davey would give him an estimate. When Hall would OK the estimate Davey, Amear, or other employees would accomplish the work and Hall would be billed for the completed work. Hall used Davey and Amear not only for landscaping and nursery work but for any work Hall needed to be done. Hall testified that he seldom saw Davey or Amear since he was at work and if he saw them it would be only for 5 to 10 minutes at a time. The evidence showed that Davey and Amear controlled their hours of work and method of accomplishing the work. In February of 1977, Amear testified that it was too cold to work in the mornings so they would not commence work until late in the afternoon when it warmed up, and quit when it became too cold or too dark.

Hall employed Davey to rebuild a greenhouse. When the construction was finished a part of a roll of fiberglass remained. Hall asked Davey to install the fiberglass over four spaces formed by exposed beams connecting the carport and the house. The beams, approximately 10 feet from the ground, were purely decorative and ornamental, and not functional--nor did they have a structural purpose. They were nailed to the carport and the house by a method called "toenailing" and by using finishing nails. Hall did not instruct Davey or Amear how they were to install the fiberglass but did tell them what to use (the fiberglass left over from the greenhouse), where to install it, and that it had to be finished by 6:30 p.m. the next afternoon because Hall had a dinner party at that time and guests would be arriving. Amear stated that it was so late in the day when Hall informed him that he and Davey decided to postpone the job until the next day. They waited until late in the afternoon to commence work because it was cold and they thought they could finish before it became dark--which would be around 5:30 p.m. in February. Hall was not at home when the exposed beams were to be covered. His housekeeper and daughter were at home. Amear and an employee of the partnership--Goodman, were installing the fiberglass over the exposed beams. Goodman was a civil engineering graduate of Georgia Tech--a surveyor. Although he had studied weight bearing potential of various materials in structural analysis he had not worked with wood and had no prior experience as a carpenter. Hall did not tell Amear or Goodman how to accomplish the task of installing the fiberglass on the beams. Hall did not tell Goodman how to accomplish any job--Davey told him. It was Goodman and Amear's idea to place the ladder against the carport and go to the roof of the carport and then to step out onto the tops of the beams. Each inspected the beams before they went up the ladder. Goodman testified that "they looked all right" to him. There was no sign of a defect in the beams--viewing them from the ground. Amear testified that Hall did not tell them how to accomplish the job of affixing the fiberglass to the beams. It was left entirely to him and Davey to decide how it was to be done. Amear looked at the beams before going up the ladder. "They looked sound and safe." Before Goodman and Amear went out onto the beams each tested the beams with their weight, "to make sure they would hold our weight, and then we walked out across the boards, nailing rafters as we went." The nails in each end of a beam supporting Amear pulled through the beam and the beam and Amear fell to the ground below. Amear was severely injured. The jury found for the defendant and judgment was entered on the verdict. Plaintiff appeals. Held:

1. The plaintiff's complaint alleged a master-servant relationship existed between himself and the defendant. Defendant's answer alleged that such relationship was that of owner--independent contractor. The trial court permitted the jury to resolve the issue under instructions. Quinan v. Standard Fuel Supply Co., 25 Ga.App. 47(2), 102 S.E. 543.

Hall stated that he hired only Davey and instructed only Davey on what he wanted. He never told Davey "how [he] wanted [him] to proceed to do it, the method." Davey made the decision "as to how the work was to be accomplished." Davey and his employees were "allowed to come and go when they wanted to, when Mr. Davey told them to. They were allowed to work as Mr. Davey directed them to."

Davey testified he was told by Dr. Hall as to what work was to be done and he would prepare an estimate. After Hall approved the estimate he and Amear and their employees accomplished the work and he would bill Hall for the completed job. After they were almost finished with the greenhouse, on the afternoon before this incident, he and Dr. Hall were under the beams between the carport and the house, and Dr. Hall told him to use the left over fiberglass from the greenhouse to cover four of the spaces between the beams. It was late in the afternoon and he asked if it would be alright to start the following day. Dr. Hall stated that it would be alright to do it the following day but they would have to be finished before 6:30 p.m. because Hall had dinner guests that were to arrive at that time. Davey looked at the Beams and "they looked sound to me." He had seen structures like that before and was aware "[t]hey're not made for people to be up there standing on them." He did not look to see how the beams were secured to the house.

Amear testified that Hall did not tell them how they ought to do any job. He was asked: "Q. That was left entirely to you and Mr. Davey to decide how it was to be done, wasn't it. A. Yes."

Goodman also stated that Davey did the hiring and firing and decided who would do what job. Davey "decided how the work was to be accomplished and dealt with the employees." Davey set the hours of work and where he was to go. Hall never specified who was to come to work and never told him how to accomplish a job--Davey did. Goodman was asked: "... getting up on the carport and getting out on the beams and tacking Fiberglass down, that method of operation was not Dr. Hall's idea, was it? A. No, sir. Q. He had nothing whatsoever to do with that? A. No, sir. Q. Whose idea was it to do it that way? A. It was mine and Tom's, Tom Amear's. Q. Exclusively? A. Yes, sir." Hall's testimony was in agreement.

" 'The test to be applied in determining whether the relationship of the parties under a contract for the performance of labor is that of employer and servant, or employer and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract.' ... 'Where one is employed generally to perform certain services for another, and there is no specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the employer has retained the right to control the manner, method and means of the performance of the contract, and that the employee is not an independent contractor.' The test is not whether the employer did in fact control and direct the employee in the work but it is whether the employer had that right under the employment contract." Golosh v. Cherokee Cab Co., 226 Ga. 636, 637-639, 176 S.E.2d 925.

The test historically applied by this Court has been " ' "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. [Cits.]" [Cits.]' " Sloan v. Hobbs Sporting Goods Shop, 145 Ga.App. 255, 257, 243 S.E.2d 673; accord: Withrow Timber Co. v. Blackburn, 244 Ga. 549, 550, 261 S.E.2d 361. Under either test, the evidence demanded a finding that plaintiff was an independent contractor.

2. An owner or occupier of land is liable in damages to invitees who come upon his land for injuries occasioned by his failure to exercise ordinary care in keeping the premises safe. Code Ann. § 105-401 (Code § 105-401). This duty requires the owner or occupier of land to exercise ordinary care for the safety of his invitees in discovering defects or danger in the premises and imposes liability for injuries resulting from such defects as a reasonable inspection would disclose. Fulton Ice & Coal Co. v. Pece, 29 Ga.App. 507(1), 116 S.E. 57. Under this principle is found the duty of an owner of premises to an individual contractor and his employees who lawfully come upon the premises in the performance of a contract between the owner and the contractor because the independent contractor and his employees are invitees. Id.; Chambers v. Peacock Const. Co., 115 Ga.App. 670(3), 155 S.E.2d 704; ...