Chandler v. Harris, 22756.

• Decision Date: 22 September 1933
• Docket Number: No. 22756.,22756.
• Citation: 47 Ga.App. 535,171 S.E. 174
• Parties: CHANDLER et al. v. HARRIS.
• Court: Georgia Court of Appeals

47 Ga.App. 535

171 S.E. 174

CHANDLER et al.

v.HARRIS.

No. 22756.

Court of Appeals of Georgia,

Division No. 2.

Sept. 22, 1933.

Rehearing Granted Sept. 27, 1933.

Adhered to on Rehearing Sept. 30, 1933.

Syllabus by the Court.

1. The ten employees required to be "regularly in service, " to render the employer and his employees subject to the provisions of the Workmen's Compensation Act, are employees of the character entitled to compensation under the act.

2. Although a member of a partnership is in the employment of the partnership and receives from the partnership money for his services, denominated salary or wages, he is not to be regarded as an employee of the partnership, entitled to compensation from the partnership under the Workmen's Compensation Act, where it appears that his services are those of a manager of the business, and where it does not appear that the services performed are not required of him as a member of the partnership, and that the compensation received is not due him as a member of the partnership.

3. Where the employer is a partnership, and has in its employment only nine employees, exclusive of a member of the partnership performing services for it and who is not an employee, an injury received by one of the nine employees, although it may arise out of and in the course of the employment, is not compensable under the Workmen's Compensation Act (Laws 1920, p. 167, as amended).

Error from Superior Court, Fulton County; G. H. Howard, Judge.

Proceeding under the Workmen's Compensation Act by Inez Harris, claimant, for the death of her son, opposed by W. B. Chandler and another. To review the judgment of the superior court affirming an award of compensation to the claimant, the employer and insurer bring error.

Reversed.

Don K. Johnston, of Atlanta, for plaintiffs in error.

Spradlin & Whiddon, W. F. Moore, and Eugene Spradlin, all of Atlanta, for defendant in error.

STEPHENS, Judge.

1. The ten employees required to be "regularly in service" to render the employer and his employees subject to the provisions of the Workmen's Compensation Act, as provided in section 15 of that act (Laws 1920, p. 177, § 15, as amended by Laws 1925, p. 283, § 1), are employees of the character entitled to compensation as employees under the act. The provisions of the Compensation Act are applicable to a situation only where the relationship of master and servant obtains, and only an employee whose relationship with the employer is that of a servant to a master is entitled to compensation under the act. The relationship between a partnership and a member of the partnership is not that of master and servant; and a member of the partnership, when in the performance for the partnership of any of the duties incumbent upon him as a member of the partnership, is not a servant of the partnership. This is true although he may for his services receive from the partnership compensation as salary or wages. For a member of a partnership in the performance of any services for the partnership to be considered as a servant of the partnership, the services must be such as it is not incumbent upon him to perform in his capacity as a member of the partnership. Presumably where one of the partners performs a service for the partnership and receives compensation therefor, although it may be denominated salary or wages for the performance of duties of the partnership by him as a member of the partnership, the compensation received is due to him as a member of the partnership.

2. Upon the trial of a claim for compensation against a partnership where the determination of the question of the applicability of the Compensation Act to the partnership is dependent upon whether one of the partners constitutes one of ten employees regularly in the service of the partnership, evidence that the partnership was engaged in running two drug stores and that the partner in question was manager of the business at one of the stores and "looked after the business" and received from the partnership for his services $150 a month, where it does not appear that the services of the partner were such as were not required of him as a member of the partnership, or that the money paid him was not due to him as a member of the partnership, is insufficient to establish the partner as a servant of the partnership, and is therefore insufficient to establish the fact that the partner is an employee of the partnership as provided in the Compensation Act. Moreover the partner when so employed was not "in the service of another, " and therefore is not an employee as provided in the Compensation Act (Laws 1920, p. 167, § 2), wherein it is provided that "employee shall include every person, including a minor in the service of another under any contract of hire or apprenticeship."...