Blackburn v. Withrow Timber Co., Inc., s. 56856

• Decision Date: 14 December 1978
• Docket Number: 56857,Nos. 56856,s. 56856
• Citation: 148 Ga.App. 444,251 S.E.2d 367
• Parties: BLACKBURN v. WITHROW TIMBER COMPANY, INC. et al. FRY v. WITHROW TIMBER COMPANY, INC. et al.
• Court: Georgia Court of Appeals

Page 367

251 S.E.2d 367

148 Ga.App. 444

BLACKBURN v. WITHROW TIMBER COMPANY, INC. et al.

FRY v. WITHROW TIMBER COMPANY, INC. et al.

Nos. 56856, 56857.

Court of Appeals of Georgia.

Argued Nov. 13, 1978.

Decided Dec. 1, 1978.

Rehearing Denied Dec. 14, 1978.

Syllabus by the Court

These death actions were brought by the widows of two persons killed in a collision when, as they were meeting a tractor-trailer on a curve, the trailer came loose, rolled into their path, the decedents' car collided with logs from the trailer, and they sustained fatal injuries in the ensuing crash. Plaintiffs sued Withrow Timber Co. which had orally contracted to buy the timber from certain tracts of land, J.L.F.&S. Co. which had agreed to cut, remove and haul it, and Reid, an employee of the latter who was actually driving the rig. The court granted Withrow Timber Company's motion for summary judgment, and these appeals followed.

Douglas W. McDonald, Cornelia, for appellant (Case No. 56856).

Cathey & Strain, Dennis T. Cathey, Cornelia, for appellant (Case No. 56857).

Lawrence, Rice & Lawrence, George D. Lawrence, Jr., Eatonton, Erwin, Epting, Gibson & McLeod, Henry G. Garrard, III, Henry Green, Seaborn Ashley, Fortson, Bentley & Griffin, J. Edward Allen, Athens, for appellees.

DEEN, Presiding Judge.

1. The trial court in its order correctly stated that the only issue at this stage of the proceedings is as to the status of J.L.F.&S. Co., and whether it has been established conclusively that this company was an independent contractor as to Withrow Timber Co. rather than an agent or employee such that its negligence could be charged against this timber purchaser. The appellees of course argue that the hauler is indisputably an independent contractor and that the evidence only shows a need upon it to conform to its contract with the timber company (as well as that company's contracts with the owners of various stands of timber), and does not show that degree of the right to control the time, manner, methods and means of execution which would obtain in a master-servant relationship. The judge held: "The facts as illustrated by the pleadings, presented discovery and especially the depositions, show a possibility of something more than just supervision toward promoting conformity to the contract. Since the word 'control' is not, in fact, exact in and of itself, the evidence is not conclusive as to whether there was or was not in fact that requisite control needed to be able to designate one as an employee or an independent contractor." We agree with this part of the court's order. Among other facts, the truck, title to which was in J.L.F.&S. Co., was being purchased by it from Withrow on the installment plan, as were also three skidders and a loader, and the trailer was leased by Withrow to the hauler. More than one stand of timber was involved. The hauler was instructed where the timber was to be cut, where delivered, and the quantity, which varied. There was no written contract between these companies, but the hauler was required to conform to the specifications of the timber company and the landowner as would the company itself, he had only three employees, and so on.

The court, however, grounded the grant of his summary judgment entirely on his interpretation of Sloan v. Hobbs Sporting Goods Shop, 145 Ga.App. 255, 243 S.E.2d 673 (1978) and Hampton v. McCord, 141 Ga.App. 97, 232 S.E.2d 582 (1977). In Hampton, after holding that no agency relationship existed, we held that our conclusion was corroborated by the denial of an agency relationship in an affidavit of one...