Bentley v. Jones
| Decision Date | 24 February 1934 |
| Docket Number | 23148. |
| Citation | 173 S.E. 737,48 Ga.App. 587 |
| Parties | BENTLEY v. JONES. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The award of Department of Industrial Relations was without evidence to support it, and therefore contrary to law. The superior court erred in denying the appeal.
Error from Superior Court, Richmond County; A. L. Franklin, Judge.
Proceeding under the Workmen's Compensation Act by Mrs. E. M. Jones claimant, for the death of her husband, E. M. Jones, opposed by Robert Bentley, the alleged employer. To review a judgment of the superior court affirming an award of the Department of Industrial Relations in favor of claimant, the alleged employer brings error.
Reversed.
Hammond & Kennedy, of Augusta, for plaintiff in error.
Hardwick & Peebles, of Augusta, for defendant in error.
Mrs. E M. Jones instituted proceedings under the Workmen's Compensation Act (Laws 1920, p. 167, as amended) against Robert Bentley, for the death of her husband, E. M. Jones while in the employ of the defendant. The Department of Industrial Relations awarded her compensation, and upon this award defendant appealed such award to the superior court of Richmond county, Ga., the county in which the accident is alleged to have occurred. The judge of the superior court entered an order denying and overruling the appeal and affirming the award. The defendant thereupon sued out a bill of exceptions to this court, complaining of this ruling. The sole question to be decided, as appears from the findings of the department and the argument of counsel in this court, is whether the relation of master and servant existed between the deceased and the defendant. A résumé of the evidence will show the following uncontradicted state of facts and the legal inferences based thereon: Robert Bentley owned and operated a sawmill in Richmond county. During the summer of the year 1931 business was inactive in the lumber trade, and Bentley operated his mill only on a small scale. On the 12th of November, 1931, Bentley succeeded in selling to the Love Lumber Company 300,000 feet of manufactured gum and tupelo lumber. It appears that shortly after this date Benttley contracted with Jones, the deceased, for Jones to saw trees and cut them in certain lengths and that he was to be paid 60 cents per thousand (feet?) for such work. Bentley, after making the above contract with Love Lumber Company and with Jones, began operating his mill and had as one of his employees, as sawyer, one Phillips. After operating the mill for some two weeks in this manner, Phillips, upon deciding that he could make more money by taking over the mill and operating the same himself, contracted with Bentley that he (Bentley) would turn the mill and equipment over to him, and he would manufacture the lumber at $5 per thousand feet according to specifications recited in the contract between Bentley and Love Lumber Company. E. M. Jones thereafter agreed to and accepted the change in operations and agreed to continue his contract originally made with Bentley under Phillips. No evidence appears in the record of any instances of control or authority assumed by Bentley over the operations of the mill, and it is undisputed that he exercised none. C. C. Morgan, another claimant, appears to have been hired and paid by Phillips and on the morning of the injury was sent to the woods to help Jones cut trees.
While he was so employed with Jones, Jones paid him and assumed control over him. It appears that a tree was cut down by the two which lodged in another tree, and, in attempting to trip it, a limb was knocked off which hit the deceased in the head and Morgan on the shoulder. Jones died four days thereafter. It further appears that Phillips hired, controlled, and paid the employees of the mill; that Bentley sometimes paid the pay roll but it was charged up to Phillips; that the sawmill and all the appliances and the property upon which it was located were the property of Bentley; that Bentley pointed out the tract of land where the lumber was to come from and instructed Phillips what dimensions were desired to complete the contract.
The view that we have taken of the case makes the determination of the question of the relationship existing between Bentley and Phillips the controlling consideration. If Phillips be an independent contractor, under the evidence in the case, a recovery could not be had, for Jones could only be considered as a servant or subcontractor of Phillips, and therefore would not sustain the relation of master and servant between himself and Bentley. On the other hand, if Phillips be the servant or agent of Bentley the evidence would authorize a finding that Phillips had authority to hire Jones in behalf of Bentley, or that he ratified such employment, and therefore a recovery could be had in favor of the widow of Jones.
In order for one to recover compensation under the Workmen's Compensation Act, it must be shown that the relation of master and servant existed between him and the person from whom he claims compensation. Ga. L. 1920, p. 167, as amended. Where one "contracts with an individual exercising an independent employment, for him to do a work not in itself unlawful or attended with danger to others, such work to be done according to the contractor's own methods, and not subject to the employer's control or orders, except as to results to be obtained, the employer is not liable for the wrongful or negligent acts of such independent contractor or his servants." Quinan v. Standard Fuel Supply Co., 25 Ga.App. 47, 102 S.E. 543; Civ. Code 1910, §§ 4414, 4415. In U.S. Fidelity & Guaranty Co. v. Corbett, 31 Ga.App. 7, 119 S.E. 921, this rule was held applicable under the provisions of the Workmen's Compensation Act. See Zurich Gen. Accident & Liability Ins. Co. v. Lee, 36 Ga.App. 248, 136 S.E. 173. We might well rest our decision upon the cases of Irving v. Home Accident Insurance Co., 36 Ga.App. 551, 137 S.E. 105, and Zurich General Accident & Liability Ins. Co. v. Lee, supra, as controlling precedents, and close our opinion. However, we desire to set out a little more in detail the controlling reasons for our conclusion. The books teem with discussion of the difference between independent contractors and servants. We realize that we have pursued only a fragmentary part of them. Many definitions and tests have been announced by learned jurists and text-writers in determining the character of an independent contractor. As a whole, these definitions and tests agree in their main characteristics. The great diversity of opinion has arisen in their application to particular situations. In the words "independent contractor," the word "independent" has caused somewhat of a diversity in juridic definitions. The courts of our state have uniformly treated the absence of any right, on the part of the employer, to control the manner and means in which the stipulated work is to be done as the sole indicium of the independence of the contract. "Under the Georgia statute and decisions, the test to be applied in determining whether the relationship of the parties under the contract for the performance of labor is that of employer and servant, or that of 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." Yearwood v. Peabody, 45 Ga.App. 451, 164 S.E. 901. This quotation effectively gives the rule laid down by our courts to be used in determining the question here involved. The definition, adopted by many text-writers and courts, which ascribe a decisive significance to the lack of control on the part of the employer as to the means, manner, or time of the work, seems itself to be subject to criticism as not being all-comprehensive, for in a great many adjudicated cases the courts, in construing contracts which include provisions controlling these elements, still hold them to be independent contractors. This is well illustrated by one of our own cases. See Louisville & Nashville R. R. Co. v. Hughes, 134 Ga. 75, 67 S.E. 542. We adopt the view of the learned commentator in the highly valued A.L.R. text that possibly a better statement of such rule would be: "An independent contractor is a person employed to perform work on the terms that he is to be free from the control of the employer as respects the manner in which the details of the work are to be executed." 19 A.L.R. 235. This, however, in no way contradicts, but on the other hand still retains, the definition already laid down. The controlling question always in cases of this kind is not whether the employer actually did assume control of the manner of doing the work, but whether he had the right to do so under the contract.
Of course, as will be seen later, the circumstances surrounding the doing of the work and the fact that he did assume such control can be considered in finally determining this...
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