Elliott Addressing Mach. Co. v. Howard

• Decision Date: 01 December 1938
• Docket Number: 26977.
• Citation: 200 S.E. 340,59 Ga.App. 62
• Parties: ELLIOTT ADDRESSING MACH. CO. v. HOWARD.
• Court: Georgia Court of Appeals

200 S.E. 340

59 Ga.App. 62

ELLIOTT ADDRESSING MACH. CO. v. HOWARD.

No. 26977.

Court of Appeals of Georgia, Second Division

December 1, 1938

Syllabus by the Court.

1. The evidence authorized the finding by the Department of Industrial Relations that the deceased husband of the claimant was an employee of the defendant, and that the immediate employer of the deceased husband was an employee of the defendant, and not an independent contractor.

2. The evidence also authorized the finding that ten men were regularly in the service of the defendant, and that at the time of the accident for which compensation was prayed the defendant and the employee, the deceased husband of the claimant, were operating under the terms of the workmen's compensation act. The Department of Industrial Relations was authorized under the evidence to find that the defendant, in failing to take insurance covering its employees as required by the compensation act, had refused or wilfully neglected to comply with the provisions of section 66 of the act (Code, § 114-602), which requires employers operating under the compensation act to procure insurance as therein required. The department was authorized, in addition to the compensation awarded, to assess damages in an amount not greater than ten per cent., and to fix reasonable attorney's fees to be paid by the employer.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

Proceeding under the Workmen's Compensation Act by Mrs. V. C Howard, claimant, for the death of her husband, opposed by the Elliott Addressing Machine Company, employer. To review a judgment affirming an award of compensation of the Department of Industrial Relations, the employer brings error.

Affirmed.

Jones Powers & Williams, and Pollard Turman, all of Atlanta, for plaintiff in error.

Haas Gambrell & Gardner, of Atlanta, and H. T. Ellerby, of Detroit, Mich., for defendant in error.

STEPHENS Presiding Judge.

Mrs. V C. Howard filed a claim with the Department of Industrial Relations against Elliott Addressing Machine Company for compensation arising out of the death of her husband which occurred March 12, 1937. It was admitted by the defendant that the claimant's husband met his death during the course of the employment, but it contended that he was not employed by it at the time of his death, but that at that time he was in the employ of one Ashley, and that Ashley was an independent contractor. The single director, before whom the claim was heard, found as a matter of fact that the claimant's husband was employed at the time of his death by Elliott Addressing Machine Company, a foreign corporation, and awarded compensation. This award was approved by the full board, and on appeal to the superior court it was affirmed. The defendant excepted to that judgment.

It appeared from the evidence that Ashley was the manager of the defendant's Atlanta office and that he sold their products here, his sole compensation being the profits realized from such sale, from which he paid the salaries and commissions earned by the other employees. It further appeared that Ashley was listed in the City Directory of Atlanta as manager of the company; that all employees were registered under the social-security act as employees of Elliott Addressing Machine Company; that the signature on the social-security form was that of the vice-president of the company; that Ashley's business cards and letterheads were in the name of the company, with Ashley as its manager in Atlanta, that invoices from Sears-Roebuck Company, and other invoices, were in the name of the Elliott Addressing Machine Company; that the company settled with Ashley twice a year, and in the meantime the company paid the rent and other office expenses by a company check direct from its home office in Cambridge, Massachusetts; that all employees in Atlanta were hired by Ashley and he had the right to say what they did and to fire them; that the purchaser of any machine was billed by the home office in Cambridge, and that on the window and doors of the office in Atlanta there appeared the name of the company. Some of the other employees of the company testified that they considered themselves working for the company, while others testified that they considered themselves working for Ashley. The director found that the deceased employee was not an employee of Ashley, individually, but was an employee of the Elliott Addressing Machine Company, and that Ashley was also an employee of that company as the manager of its Atlanta office.

There was evidence before the director that for the week ending March 13, 1937, the...