Cooper v. Dixie Const. Co.
| Decision Date | 14 July 1932 |
| Docket Number | 21905. |
| Citation | 165 S.E. 152,45 Ga.App. 420 |
| Parties | COOPER v. DIXIE CONST. CO. et al. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Relation of master and servant exists where employer retains right to control time and manner of executing work.
One contracting to have work done, without reserving control except to require results conforming to contract, sustains relation of contractee to independent contractor (Acts 1920 p. 167 as amended).
Construction company which contracted with another for clearing reservoir basin held not liable to pay compensation as employer of laborer employed by contractor (Acts 1920, p 167, as amended).
The evidence disclosed that the contractor was to receive a designated sum per acre for the land cleared, and that he employed laborers and transported them from and to their work in a truck owned by him over a route of his own selection transportation being a part of the agreement of hiring between him and the laborer. Claimant, one of the contractor's employees, sought compensation for injuries sustained while being transported in contractor's truck from place of work to his home.
Independent contractor's employee, injured in place not under control of principal contractor, while being transported from work could not recover compensation from principal contractor (Acts 1920, p. 178, § 20).
1. Where, under a contract between an employer and a contractor for the doing of certain work, the employer retains the right to direct or control the time and manner of executing the work to be done thereunder, the relation of master and servant exists, and not the relation of employer and independent contractor.
2. The test to be applied in determining this relationship lies in whether the contract gives the employer the right to control the time and manner of executing the work, or he interferes and assumes such control, as distinguished from the right merely to require results in conformity to the contract.
3. Where one contracts with an individual for him to do work not in itself unlawful or attended with danger to others, such work to be done according to certain plans and specifications and according to the terms of the contract, the contractee reserving no control over the work or workmen or the time and manner of doing the work, except to see that it is done in accordance with the terms of the contract, the relation of contractee and independent contractor exists, and, where one is injured while in the employ of the independent contractor, the contractee is not liable under the Workmen's Compensation Act (Acts 1920, p. 167, as amended), as an employer of the employee of the independent contractor.
4. Moreover, the injury to the claimant not occurring on, in, or about the premises on which the principal contractor had undertaken to execute the work of constructing the dam or which were otherwise under the principal contractor's control or management, the claimant would not be entitled to recover compensation under the provisions of section 20 of the Workmen's Compensation Act (Acts 1920, p. 178).
Error from Superior Court, Baldwin County; James B. Park, Judge.
Proceeding under the Workmen's Compensation Act by Sam Cooper, opposed by the Dixie Construction Company and another. An award of the Industrial Commission denying compensation was affirmed by the superior court, and claimant brings error.
Affirmed.
Independent contractor's employee, injured in place not under control of principal contractor, while being transported from work, could not recover compensation from principal contractor. Acts 1920, p. 178, § 20.
Sam Cooper filed his application for compensation under the Workmen's Compensation Act (Acts 1920, p. 167, as amended) with the Industrial Commission against the Dixie Construction Company and O. C. Mixon.
The evidence adduced upon the hearing showed the following material facts: On October 28, 1929, the Dixie Construction Company was engaged in constructing for the Georgia Power Company a dam across the Oconee river at Furman shoals in Baldwin county. A portion of the work so undertaken by the Dixie Construction Company was the clearing of the reservoir basin of trees, brush, and undergrowth. This company entered into a contract with Mixon to cut, remove, or destroy all such trees, brush, and undergrowth from a described area in this basin. For this work Mixon was to receive a designated sum per acre for the land cleared. Mixon employed more than twenty men as laborers in said work. He resided in Jones county, about twenty-five miles from the reservoir basin which he was to clear under said contract, and about twelve miles from any premises in the possession or control of the company. He transported his laborers from Jones county to and from their work in a truck owned by him, over a route of his own selection; the furnishing of' such transportation being a part of the agreement of hiring between him and such laborers.
Cooper was employed by Mixon as one of the laborers to be used on said work. On October 28, 1929, while Cooper, together with a number of other laborers engaged in such work, were being transported in Mixon's truck from said work to their homes in Jones county, at a point on the Milledgeville-Gray highway, eleven or twelve miles west of Milledgeville, and about eighteen miles from the place where the work was being carried on, said truck was struck by an automobile being driven along the highway toward Milledgeville. Cooper's legs were caught between the automobile and the truck on which he was riding, and he sustained the injuries for which he seeks compensation in the present proceeding.
Mixon was insolvent and unable to respond to a judgment, and carried no compensation insurance.
The contract between said company and Mixon, which was introduced in evidence on the hearing, provided, among other things that the work was to be done in such a way as to meet the requirements of the permit granted by the state and the regulations of the state, county, and municipal health boards having jurisdiction in such matters and the health and sanitary rules and regulations of the company; that Mixon was to have not less than twenty men engaged in this work at all times; that Mixon should, within twenty-four hours after receiving written notice from the company that any work done under the agreement was not in accord with the specifications attached thereto, or not in accordance with said sanitary rules and regulations, cease work on the part of the job not in accordance with such specifications and rules and regulations; that, upon any breach of the agreement, the company might declare the same terminated and employ any person or persons it might desire to finish the clearing of said lands; that in such event Mixon would not be entitled to receive any further payments until the work was completed; that Mixon should not in any way hinder or delay other contractors or employees of the company in the performance of duties incident to the construction of said project; that no trees should be cut which should fall in the channel of the river unless authorized by the company; that all public roads should be kept open and no creeks or ponds obstructed; that Mixon should not appropriate to his own use, injure, or destroy any timber within or without the area referred to, or put up any camp or building on the lands of others without the written consent of the owner of such land; that he should remove all brush and timber falling outside of this area; that he should at the direction of the company tie down, in lieu of piling and burning, such of the débris as the company might designate; that the company might at its option come into said area and take over the work of clearing all or any part of said lands, and on all such lands so taken over and cleared by the company Mixon should not be paid therefor; that Mixon should hold the company harmless from all loss, cost, or damages, or claims therefor, to persons or property arising or growing out of acts of omission or commission of himself, his agents or servants or subcontractors or their servants or agents in the prosecution of said work; that the company should have the right to enter upon any of said lands at any time and recover any fallen timber; that the term of the agreement should be from October 28, 1929, to May 1, 1930, and Mixon should begin work forthwith and prosecute the same with diligence and in the order or sequence determined by the company; that Mixon should place on said lands by December 1, 1929, such equipment as in the company's judgment was necessary to complete the clearing of said area by May 1, 1930; that, if the daily average progress of the work in the period between December 1, 1929, and January 15, 1930, was in the opinion of the company, not satisfactory, it might terminate this agreement and take over the work and complete the same; that, in determining whether...
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