Davis v. Starrett Bros., Inc.
| Citation | 147 S.E. 530,39 Ga.App. 422 |
| Decision Date | 06 March 1929 |
| Docket Number | 19118. |
| Parties | DAVIS v. STARRETT BROS., Inc. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The amendment to the defendant's answer was properly allowed and the court did not err in overruling the demurrer and motion to strike the amendment.
The employer of the plaintiff in this case was not an independent contractor, and the court did not err in directing a verdict for the defendant.
Error from Superior Court, Fulton County; E. D. Thomas, Judge.
Action by Lyle C. Davis against Starrett Bros., Incorporated. Judgment for defendant, plaintiff's motion for new trial was overruled, and plaintiff brings error. Affirmed.
G Seals Aiken, of Atlanta, for plaintiff in error.
Harold Hirsch and W. B. Cody, both of Atlanta, for defendant in error.
Lyle C Davis brought his action for damages against Starrett Bros Incorporated, alleging that while working in an elevator shaft on the first floor of a certain building in Atlanta as the employee of the Tyler Company, a carpenter who was in the employ of Starrett Bros., Incorporated, and was working in the shaft five floors above him, negligently dropped a hammer down the shaft, and it fell upon him and seriously injured him. The defendant was alleged to be negligent because it did not place something underneath its carpenters to prevent anything from falling down the shaft and injuring him, and for various other reasons which need not be stated here.
After the plaintiff had rested his case and the defendant had submitted part of its evidence, the defendant offered to amend its answer by pleading that the plaintiff was barred by reason of the fact he was working under the Georgia Workmen's Compensation Act, and was, under an agreement with the Tyler Company and a named insurance carrier, which had been approved by the Industrial Commission, receiving $15 a week for the injuries alleged in the petition.
The plaintiff objected to the allowance of the amendment, moved to strike it, and demurred to it. The said objection, motion to strike, and demurrer were all overruled, and the plaintiff excepted pendente lite. The court then directed a verdict for the defendant, and a verdict was rendered accordingly. The plaintiff's motion for a new trial as amended was overruled, and he excepted.
The motion for a new trial contains several special grounds, which disclose no reversible error and warrant no special consideration. The remainder of the special grounds are governed by the controlling question raised by the record, which is this: Was, or was not, the Tyler Company an independent contractor? If it was, the plaintiff was entitled to go to the jury, and the direction of the verdict was error. If it was not, the direction of the verdict was proper.
Before discussing the main question in the case, we deem it proper to say that the amendment to the answer was properly allowed. Civil Code 1910, § 5681. The affidavit to the plea, that "the new facts or defense were not omitted from the original answer for the purpose of delay, and the same is now filed in good faith and not for the purpose of delay," meets the requirements of Civil Code 1910, § 5640. We held also, that the court properly overruled the demurrer to the amendment and the motion to strike it.
Attached to the amendment as Exhibit A was a copy of the contract between Asa G. Candler, Incorporated, and Starrett Bros., Incorporated, providing for the erection of a building by the latter for the former on a plot of ground on Peachtree and Ellis streets in the city of Atlanta. Starrett Bros., Incorporated, was to provide labor, equipment, and materials and erect the building according to plans and specifications, and negotiate all employment and purchases and let all subcontract work. It agreed also, to provide workmen's compensation, public liability, and contingent insurance.
"Exhibit B," attached to the plea, is the contract between Starrett Bros., Incorporated, and the Tyler Company. This contract covers 12 pages, and is too long to be set out fully here. However, since by it the relationship of the parties thereto is to be determined, and that relationship controls this case, this contract demands very careful consideration.
The salient features of the latter contract appear from the following: Starrett Bros., Incorporated, is designated "builder," and the Tyler Company "subcontractor." The contract provides:
1st. That "to the satisfaction of the builder and the architect," the subcontractor shall provide all materials and perform all work mentioned in the specifications (and addenda thereto, if any), and shown on the drawings prepared by the architect.
2d. The subcontractor shall abide by the general conditions in the specifications of the architect in so far as they apply to the work. And where the contract is at variance with the plans and specifications, it controls.
3d. "The builder shall furnish the subcontractor such further drawings or explanations as may be necessary to detail and illustrate the work to be done, and the subcontractor shall conform to the same as part of this contract, as far as may be consistent with the original drawings and specifications. ***" "The subcontractor shall exercise the utmost diligence to obtain the drawings and information necessary to fulfill the work herein contemplated," and "shall, from time to time, and at frequent intervals, inform the builder in writing as to what drawings or information may still be required. ***"
4th. "All workmanship and material *** shall be subject at all times to the inspection and approval of the architect, to whom the same shall be made satisfactory within the meaning of the plans and specifications and this contract;" and the subcontractor shall provide facilities at all times for the inspection of the work by the architect, the builder, or the authorized representative of either or both. Within 24 hours after receiving written notice to that effect, the subcontractor shall proceed to remove all material condemned by the builder as unsound or improper, and to take down all portions of the work so condemned as unsound or improper, or in any way failing to conform to the drawings and specifications, replacing same, without extra expense, with material and workmanship satisfactory to the architect or builder, or both.
5th. "Should the subcontractor at any time refuse or neglect to supply a sufficient number of properly skilled workmen, or sufficient materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, the builder shall be at liberty to provide any such labor and materials, and deduct the cost thereof from any money then due or thereafter to become due the subcontractor;" and the builder shall have the right to cancel the contract and complete the work under it, paying the subcontractor the excess, if any, of the unpaid balance due it over the expense incurred by the builder in completing the contract; if the balance be against the subcontractor, it shall pay the builder the difference.
6th. "Should the owner or architect make changes in the plans and specifications which would decrease the amount of work to be performed or materials furnished under this contract, the builder shall have the right to order curtailment in conformity therewith, and the subcontractor shall make proper allowance to the builder to the value of the work and materials so omitted."
7th. An officer of the builder must sign confirming orders for any overtime, extra work, or materials furnished under any order from the builder's job representative, to enable the subcontractor to...
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