Barbree v. Shelby Mut. Ins. Co., 39158

• Decision Date: 09 January 1962
• Docket Number: No. 39158,No. 2,39158,2
• Citation: 123 S.E.2d 905,105 Ga.App. 186
• Parties: C. L. BARBREE v. SHELBY MUTUAL INSURANCE COMPANY et al
• Court: Georgia Court of Appeals

Page 905

123 S.E.2d 905

105 Ga.App. 186

C. L. BARBREE v. SHELBY MUTUAL INSURANCE COMPANY et al.

No. 39158.

Court of Appeals of Georgia, Division No. 2.

Jan. 9, 1962.

Syllabus by the Court

Where it affirmatively appears from the award in a workmen's compensation proceeding that said award is based upon an erroneous legal theory, and that for such reason the board or hearing director has not considered all of the evidence in the case in the light of correct and applicable legal principles, the case should be remanded to the board for further findings.

C. L. Barbree, a welder, was injured while engaged in repairing a door to a concrete mixer for Decatur Concrete Block Company, one of the defendants herein. He filed a claim with the State Board of Workmen's Compensation, which was contested by the defendant company and its insurance carrier on the ground that the claimant was not an employee but was an independent contractor.

After a hearing the deputy director made an award in favor of the defendants on this ground. In his award he found as a matter of fact that the claimant was only employed by the defendant company to do specific welding jobs or repairs over a period of three years; that there was no specific contract between the parties; that the claimant was not on the payroll of the defendant company; and that there was no evidence in the record that the defendant company exercised or assumed the right of control of the time and manner in which the claimant performed his services for the company. He then found as follows: 'I further find as a matter of fact from the evidence in this case that C. L. Barbree had his own business and was operating a separate and distinct business consisting of a welding shop and radiator repair service and therefore could not be an employee of the defendant company.' The director further found that the claimant was paid $4 or $5 an hour on each job, depending on whether he went to the premises of the defendant company or whether the job was sent to his place of business; that the defendant company was only interested in the results of his work; and that the claim must be denied since the claimant was 'obviously an independent contractor.'

The full board in a divided decision adopted the findings of fact of the deputy director and on appeal affirmed his decision. The Superior Court of Decatur County affirmed the award, and this order is assigned as error.

Bruce W. Kirbo, Bainbridge, for plaintiff in error.

Conger & Conger, Leonard H. Conger, Bainbridge, for defendants in error.

JORDAN, Judge.

Where it affirmatively appears from the award in a workmen's compensation proceeding that said award is based upon an erroneous legal theory, and that for such reason the board or hearing director has not considered all of the evidence in the light of correct and applicable legal principles, the case should be remanded to the board for further findings. Borden Co. v. Dollar, 96 Ga.App. 489, 490, 100 S.E.2d 607; Liberty Mutual Ins. Co. v. Simpson, 101 Ga.App. 480, 114 S.E.2d 141; Baker v. Liberty Mutual Ins. Co., 103 Ga.App. 100, 101, 118 S.E.2d 386; Wilson v. Swift & Co., 68 Ga.App. 701, 23 S.E.2d 261.

The award of the single director in this case, which was adopted by the full board on appeal, appears to have been based on the erroneous legal theory that the claimant could not have been an employee of the defendant company since he owned and operated his own independent welding business. That this is erroneous, see Cash v. American Surety Co., 101 Ga.App. 379, 114 S.E.2d 57. The fact that a workman owns and operates his own independent business does not ipso facto preclude him from performing services for another in the pursuit of his trade in the status of an employee rather than an independent contractor. This is simply a circumstance to be considered in determining the actual status of the workman at the time the injury was sustained.

It further appears that the award of the deputy director in this case was also based on the erroneous legal theory that it is the exercise or assumption of the right of control of the time, manner and means of the work which is determinative of the master-servant relationship. This court has on many occasions held that the chief test (though not an all-inclusive...