Cash v. American Sur. Co., 38209

• Citation: 101 Ga.App. 379,114 S.E.2d 57
• Decision Date: 18 March 1960
• Docket Number: No. 2,No. 38209,38209,2
• Parties: J. L. CASH v. AMERICAN SURETY COMPANY et al
• Court: United States Court of Appeals (Georgia)

Page 57

114 S.E.2d 57

101 Ga.App. 379

J. L. CASH v. AMERICAN SURETY COMPANY et al.

No. 38209.

Court of Appeals of Georgia, Division No. 2.

March 18, 1960.

Rehearing Denied March 31, 1960.

Syllabus by the Court

The issue in this workmen's compensation case is whether an employer-employee relationship or a master-servant relationship existed between the parties. 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. Accordingly, testimony of the claimant that he worked on an hourly rather than a contract basis, combined with testimony of the defendant that he could have stopped the work and paid off the claimant at any time, authorized the finding that the contract was a contract of employment, and not a contract with an independent contractor to achieve a specified result.

James L. Cash, while engaged in welding together 18 barrels or drums to be used as floats to support pipes used in the business of the defendant James W. Threatt, was injured when one of the barrels exploded. He filed a claim with the State Board of Workmen's Compensation which was contested by Threatt and his insurance carrier on the ground that the claimant was not an employee but an independent contractor. Briefly, the evidence on the hearing of the case showed that the claimant owned his own welding equipment and had a garage and welding shop which he had operated for several years; that on occasion he took his welding equipment to the premises of others mounted on a jeep; that he had previously welded barrel floats for Threatt and for other persons and knew what was needed in this operation; that Threatt called Cash and asked him to come over and do some welding for him; that Cash was to receive $4 per hour for his labor; that Cash appeared in answer to the call and Threatt then showed him 18 barrels and told him to weld them 'similar as before'; that he was also told about some welding on a tractor-trailer, and was further told that when he finished that he would be shown some welding work to be done on a barge. As to the contract, the claimant testified: 'Q. You work more or less on a contract basis? A. No, sir, not too much, I work more or less on an hourly basis.' The defendant testified: 'Q. Could you have stopped him on those barrels at any time you wanted to and paid him off at that time? A. Yes.'

The hearing director entered an award in favor of the claimant, which was affirmed by the full board on appeal. The judge of the Superior Court of Fulton County reversed the award and directed that judgment be entered up in favor of the defendant, and this order is assigned as error.

John M. Williams, Edward B. Everett, Atlanta, for plaintiff in error.

Charles L. Drew, Smith, Field, Ringel, Martin & Carr, Atlanta, for defendants in error.

TOWNSEND, Judge.

The burden of proving the employer-employee relationship is on the claimant in a workmen's compensation case. Young v. Demos, 70 Ga.App. 577, 579, 28 S.E.2d 891. However, in view of the liberal interpretation accorded compensation laws generally, it has been held that 'in determining whether a claimant in a workmen's compensation case is an employee and subject to the act, or an independent contractor and not so subject, any doubt is to be resolved in favor of his status as an employee rather than an independent contractor.' Liberty Mut. Ins. Co. v. Henry, 56 Ga.App. 868, 870, 194 S.E. 430, 431. This means simply that, while the claimant is at all times cast with the burden of proof, the evidence offered will, so far as it is genuinely susceptible of construction, be given that construction which is in his favor in determining whether he has carried that burden by a preponderance of the evidence.

'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...