Campbell v. Travelers Ins. Co., 37863

• Decision Date: 25 November 1959
• Docket Number: Nos. 1,No. 37863,2,37863,s. 1
• Citation: 100 Ga.App. 853,112 S.E.2d 311
• Parties: Allen CAMPBELL v. TRAVELERS INSURANCE COMPANY et al
• Court: Georgia Court of Appeals

Page 311

112 S.E.2d 311

100 Ga.App. 853

Allen CAMPBELL v. TRAVELERS INSURANCE COMPANY et al.

No. 37863.

Court of Appeals of Georgia, Division Nos. 1, 2.

Nov. 25, 1959.

Rehearing Denied Dec. 17, 1959.

J. W. Stroy, Alma, J. Laddie Boatright, Douglas, for plaintiff in error.

Bennett, Pedrick & Bennett, Memory, Barnes & Memory, Waycross, for defendant in error.

Syllabus Opinion by the Court

NICHOLS, Judge.

1. 'Triors of fact are not compelled to accept the sworn version of a witness to a particular fact, much less the witness's construction of a contract, if there are facts and circumstances proven from which a contrary conclusion may be reached. In Scott & King v. Ayers, 66 Ga. 254, it is said: 'Nor is the Department of Industrial Relations bound in every case to accept the literal statements of a witness before it merely because such statements are not contradicted by direct evidence. Implications inconsistent with the testimony may arise from the proved facts; and in still other ways the question of what is the truth may remain as an issue of fact despite uncontradicted evidence in regard thereto.' Cooper v. Lumbermen's Mutual Casualty Co., 179 Ga. 256, 260, 175 S.E. 577, 580.' Malcom v. Sudderth, 98 Ga.App. 674, 686, 106 S.E.2d 367, 375.

2. "Where one is employed generally to perform certain services for another, and there is no specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the employer has retained the right to control the manner, method, and means of the performance of the contract, and that the employee is not an independent contractor.' [Mitchem v. Shearman Concrete Pipe Co., 45 Ga.App. 809(1), 165 S.E. 889].' Malcom v. Sudderth, 98 Ga.App. 674, 687, 106 S.E.2d 367, 376.

3. "In order for one to be an independent contractor so as to be outside the protection of the workmen's compensation act, the contract of employment must itself be one, which contemplates a definite beginning, continuance, and ending.' [99 C.J.S. Workmen's Compensation § 98(55), p. 342].' Malcom v. Sudderth, supra, 98 Ga.App. at page 686, 106 S.E.2d at page 376.

4. 'The law does not permit the employer, simply by designating certain of his employees independent contractors, to bypass the workmen's compensation law, and this is true, although the employer may bona fide believe that the end referred to may be accomplished in the manner mentioned.' Malcom v. Sudderth, supra, 98 Ga.App. at page 685, 106 S.E.2d at page 375.

5. "In determining the real character of a contract, courts will always look to its purpose, rather than to the name given it by the parties.' Hays v. Jordan, 85 Ga 741, 748, 11 S.E. 833, 835, 9 L.R.A. 373.' Malcom v. Sudderth, supra, 98 Ga.App. at page 685, 106 S.E.2d at page 375.

6. Applying the above law to the facts in the present case the finding was authorized by the evidence that St. Regis Paper Company purchased the right to cut pulpwood timber from the land of Valene Bennett and then employed Bennett-Nixon Timber Company, a corporation, to cut the pulpwood timber from such land paying a price per cord for the timber actually cut, less a stumpage charge (the same price paid by it to Valene Bennett), that Bennett-Nixon Timber Company employed other persons to do the job of cutting the timber into pulpwood, hauling it and loading it on cars in Alma, Georgia, that these persons then employed 'laborers,' such as the claimant, to do the manual labor, that the paper company marked the trees to be cut, gave instructions as to how much was to be cut each week which instructions were passed down from the paper company, through the timber company, to the eventuall laborers, that these instructions also described the pulpwood to be cut, that the paper company could have stopped the timber company from cutting timber on the land at any time which meant the paper company could have controlled the employment of all persons shown above, and that therefore the paper company, under the circumstances of the case sub judice had the right to control the time, manner, and method of doing the work and as such was the claimant's employer within the meaning of the Workmen's...