Baird v. Travelers Ins. Co., 37424
| Decision Date | 12 January 1959 |
| Docket Number | No. 37424,No. 1,37424,1 |
| Citation | 98 Ga.App. 882,107 S.E.2d 579 |
| Parties | F. O. BAIRD v. TRAVELERS INSURANCE COMPANY et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
The judge erred in reversing the award of the Workmen's Compensation Board because the evidence was sufficient to present a question of fact as to whether the claimant was an employee who received an injury arising out of and in the course of his employment.
An application for compensation under the Workmen's Compensation Act was filed by Farris O. Baird, herein referred to as the claimant, against Bolton Broiler Company and Travelers Insurance Company.
On the hearing the claimant testified in part that: he was employed by Bolton Broiler Company as a chicken catcher; he also worked as a driver when the regular driver did not come to work; his job consisted of catching chickens and putting them in crates; he was paid $1 per thousand for the chickens his team caught; T. G. Minish was his boss and told him what to do; Minish would take him and his fellow employees out to a chicken house where they would catch chickens and put them in a crate; after the crates were loaded on a truck they went back to the plant and 'were supposed to stay around if we had more work to do'; on the date of the injury he and a crew of approximately nine other men were taken to a farm to catch chickens at approximately 1 a. m.; while they were in the process of catching chickens they all engaged in horseplay, consisting of throwing small rocks and paper at each other; that the horseplay was the usual custom on the job and had been taking place for sometime; on the day of the injury he engaged in the horseplay while he was at the farm catching chickens; after they had caught the chickens the crew returned to the plant and went across the street to eat in a cafe; after having eaten he returned to the plant and looked in an office window; when he looked in the office window he got shot in the eye with a piece of paper; T. G. Minish was the one who shot him using a rubber band to propel the piece of paper; he had not engaged in the horseplay since he left the farm; it took approximately thirty or forty minutes to come from the farm to the plant and the injury occurred fifteen or twenty minutes after he had returned from the farm; he did not know whether the remainder of the crew had engaged in horseplay after they left the farm.
T. G. Minish testified in part that: he was employed by Bolton Broiler Company on the date the injury to Farris O. Baird occurred; he had been working with the claimant on that day; he and the claimant went to the cafe together after returning from the farm; on the way back from the cafe either Loyd Akin or the claimant shot him in the back with a 'spit ball'; he thought the claimant had done it but was not sure; he did not engage in horseplay with the claimant in the cafe; he shot the claimant in the eye, using a piece of paper and a rubber band.
Loyd Akin testified in part that: he was on the chicken catching trip the day the injury occurred; after they returned to the plant he and T. G. Minish engaged in shooting spitaballs; he thought the claimant did also but he was not sure; he shot Minish with a spitball; he could not remember whether the claimant shot Minish with a spitball or not. This witness then contradicted himself several times as to whether the claimant and Minish had engaged in horseplay after returning from the chicken farm.
Victor Richie testified in part that: he was foreman of the plant on the day the injury occurred; Minish was under his authority and he instructed Minish to get a crew and load chickens; Minish hired the claimant; he paid the claimant $1 per thousand to catch chickens.
The director found in favor of the claimant and the case was appealed to the full board. The full board affirmed the director and the case was appealed to the superior court. The superior court reversed the award of the full board and it is to this ruling exception is taken.
Kimzey & Crawford, Linton K. Crawford, Cornelia, for plaintiff in error.
Wheeler, Robinson & Thurmond, Gainesville, for defendant in error.
1. Counsel for Bolton Broiler Company and its insurance carrier insist that the claimant was an independent contractor and therefore did not come within the provisions of the Workmen's Compensation Act, Code, § 114-101 et seq. With this contention we cannot agree. The claimant testified that T. G. Minish, an employee of Bolton Broiler Company, 'was our head man, he was the one that told us what to do.' The evidence also disclosed that the claimant worked where and when he was told. This, considered with the remainder of the evidence, was sufficient to show that Bolton Broiler Company controlled the time, manner and method of executing the work, and the claimant was an employee, not an independent contractor. Liberty Lumber Co. v. Silas, 49 Ga.App. 262(2), 175 S.E. 265.
The claimant was obviously not conducting a business or enterprise of his own, but through manual labor of the simplest kind performing a function necessary in carrying on his employer's business. In Malcom v. Sudderth, 98 Ga.App. 674, 106 S.E.2d 367, 377 it was said: 'According to the weight of authority, one of the most significant guides in classing a piece worker an employee or an independent contractor is found in the answer to the question: does he conduct his own independent business or merely work in carrying on that of his employer. In [Maryland Casualty Co. v. Kent, Tex.Civ.App.], 271 S.W. at page , 932 it is said: 'A contractor is any person who, in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and method, without submitting himself to their control in respect to all its details. The true test of a contractor would seem to be that he renders service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.'' There are other sound criteria furnished by the Malcom case for the correct determination of the status of one who does piece work on behalf or in the service of another. Under several tests discussed in the case, and for which authoritative supporting cases are referred to, there is no question that the claimant in this case was not an independent contractor but occupied the relationship to the employer of master and servant.
2. Counsel for the employer contends that the injury occurred at a time when the claimant was on his own time and not performing any duties for his employer and therefore did not arise out of and in the course of his employment. The claimant testified that: he had returned from the farm where they had been catching chickens and he went to the cafe; after finishing in the cafe he returned to the plant to wait for the next trip to another farm; when they had more work to do they were supposed to stay around; when he returned to the...
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