Blair v. Smith
| Docket Number | 15671. |
| Decision Date | 07 January 1947 |
| Parties | BLAIR v. SMITH. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
It was not error to overrule the motion for new trial.
T. A Smith, in his action against A. F. Blair, alleged that: The defendant was a general contractor, maintaining a fleet of trucks. In July, 1944, while the plaintiff was on a scaffold engaged in painting a building for the United States Navy, in Gainesville, a truck belonging to the defendant negligently ran against the scaffold, knocking the plaintiff to the ground and causing him to sustain certain personal injuries for which he sued. He charged the defendant with specified acts of negligence and prayed for a judgment of $5,000.
The defendant answered, admitting that the truck which ran against the scaffold belonged to him, but he denied the other material allegations of the petition, and alleged, for further defense, that the plaintiff was an employee of Merrill P. Wilson, that Wilson was a subcontractor under the defendant, who, as the general contractor, was engaged in construction, extension and repair for the United States Government at Gainesville, Georgia. He alleged that both Wilson and himself were under the workmen's compensation law of Georgia, that the plaintiff had elected to come under the terms and provisions of such law (Code, § 114-112), that he had collected workman's compensation for the injuries received, and that his action was barred under the Code, § 114-103.
On the trial of the case the defendant offered in evidence the contract between Wilson and himself, and certain provisions of the contract between the defendant and the government. On objection, the court excluded the contract from the consideration of the jury, and a verdict for the plaintiff was rendered by the jury. A motion for new trial was overruled, and the exception is to that judgment. The case comes to this court because the Court of Appeals divided equally on the question of whether a new trial should be granted.
Matthews & Long & Moore and T. J. Long, all of Atlanta, for plaintiff in error.
T. E Whitaker and Young H. Fraser, both of Atlanta, for defendant in error.
HEAD Justice (after stating the foregoing facts).
Under the rulings of this court in Athens Railway & Electric Co. v. Kinney, 160 Ga. 1, 127 S.E. 290, Smith had a valid cause of action against Blair, should it be determined that Wilson, his immediate employer, was an independent contractor, rather than a servant, of the general contractor, Blair. In this connection, see also Sheffield Co. v. Phillips, 69 Ga.App. 41, 45, 24 S.E.2d 834. From the record and the briefs filed by counsel, a construction of the contract involved, to establish the relationship between Blair and Wilson, is the sole matter for consideration here.
The correct rule to be applied in this case was stated by the Court of Appeals in Yearwood v. Peabody, 45 Ga.App. 451, 164 S.E. 901, as follows: 'Under the Georgia statute and decisions, 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 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.'
It is conceded by counsel for the plaintiff in error that the general contractor Blair did not assume control of the work specified in his contract with Wilson, but he insists that the contract gave him the right to do so, and that this right to take charge of the work created the relationship of master and servant. If the contract gave Blair the right to assume control and direct the time, manner, and method of executing the work, rather than to require a certain definite result, Wilson would be a servant of Blair rather than an independent contractor.
Counsel for the plaintiff in error relies solely upon Davis v. Starrett Bros., 39 Ga.App. 422, 147 S.E. 530, and insists that the provisions of the contract in that case are so similar to those of the contract in the present case that the finding is required that Wilson was a servant of Blair, in accord with the judgment in the Davis case. With this contention we can not agree. It is true that provisions in the contract between Blair and Wilson in instances are similar to provisions in the contract construed in the Davis case; but there are other provisions entirely opposed to anything contained in the contract in the Davis case.
Paragraph 1 of the contract between Blair and Wilson refers to 'section 28 of the specifications and/or as shown or called for on contract drawings,' and 'section 1 of specifications titled 'General Clauses," and states that they...
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