Fidelity & Cas. Co. of New York v. Windham

• Citation: 209 Ga. 592,74 S.E.2d 835
• Decision Date: 24 February 1953
• Docket Number: No. 18098,18098
• Court: Supreme Court of Georgia
• Parties: FIDELITY & CASUALTY CO. OF N. Y. et al. v. WINDHAM.

Page 835

74 S.E.2d 835

209 Ga. 592

FIDELITY & CASUALTY CO. OF N. Y. et al. v. WINDHAM.

No. 18098.

Supreme Court of Georgia.

Feb. 24, 1953.

Syllabus by the Court.

The State Board of Workmen's Compensation being without jurisdiction to entertain a claim where the relationship of employer and employee does not exist, the judgments of the Superior Court and the Court of Appeals in affirming an award in favor of the claimant were erroneous.

Swift, Pease, Davidson & Chapman, Columbus, for plaintiffs in error.

W. B. Skipworth, Jr., Columbus, for defendant in error.

ALMAND, Justice.

This case is here on a writ of certiorari to the Court of Appeals. The petitioner assigns error upon the decision and judgment of that court in the case of Fidelity & Casualty Co. of New York v. Windham, 87 Ga.App. 198, 73 S.E.2d 517. Petitioner asserts that the Court of Appeals erred in holding that the evidence was sufficient to authorize a finding that Windham, the claimant, was an employee of the cab company at the time of his injury and was entitled to compensation under the Workmen's Compensation Act; it being alleged by the petitioner that the court erred in holding that the relationship of employer and employee 'existed between Co-Op Cab Company and Irby L. Windham and overlooked and failed to consider that part of Code (Ann.) § 114-101, which states that an employer is one 'using the services of another for pay''; and also because there was no evidence showing that Co-Op Cab Company paid the claimant any 'wages' as that term is used in the Workmen's Compensation Act.

Code, § 114-101 defines an employer as one engaged in any business for gain or profit using the service of another for pay, and defines an employee as a person in the service of another under any contract of hire. Code, § 114-402, as amended by the act of 1945, Ga.L.1945, p. 486, Code Ann.Supp. § 114-402, in prescribing the basis for computing compensation under the Workmen's Compensation Act, provides that 'the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation.'

The determinative question before us is whether the evidence in this case was sufficient to establish the relationship of employer and employee within the meaning of the Workmen's Compensation Act, because, if such relationship was not established, the State Board of Workmen's Compensation was without jurisdiction to entertain his claim. Hartford Accident & Indemnity Co. v. Thompson, 167 Ga. 897, 147 S.E. 50; Parker v. Travelers Insurance Co., 174 Ga. 525, 163 S.E. 159, 81 A.L.R. 472. The claimant has the burden of proving such relationship. Banks v. Ellijay Lumber Co., 59 Ga.App. 270(2), 200 S.E. 480. Young v. Demos, 70 Ga.App. 577, 28 S.E.2d 891. 'In determining whether or not the relationship of master and servant prevails in a compensation case the same principles that exist under the common law obtain.' Travelers Insurance Co. v. Clark, 58 Ga.App. 115, 121, 197 S.E. 650, 654. The test to be applied in determining whether the relationship of the parties under a contract for the performance of labor is that of employer and servant, or employer and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract. Yearwood v. Peabody, 45 Ga.App. 451(2), 164 S.E. 901; Macon News Printing Co. v. Hampton, 192 Ga. 623, 15 S.E.2d 793. It was held in Georgia Railway & Power Co. v. Middlebrooks, 34 Ga.App. 156, 128 S.E. 777: 'Payment of wages, although not necessary to render one a master, is necessary to bring one within the workmen's compensation act, which contemplates that compensation shall be fixed in proportion to the employee's wages as applied to the particular injury.'

We will not attempt here to set out all the evidence relating to this question, because it is fully stated in the report of the case in 87 Ga.App. 198, 73 S.E.2d 517, supra. It may be summarized as follows: Co-Op Cab Company owned automobiles used as taxicabs, and maintained an office and passenger station in Columbus. The claimant rented a cab equipped with radio by the day from the company for a period of 12 hours. For the use of the cab the claimant paid the company $6.50 a day; the claimant paid for the gasoline consumed by the car while he operated it, and the company supplied the oil. The claimant paid for his driver's license and permit to operate the cab, kept all the money that he received from fares, and did not have to account to the company in any manner as to the fares collected. The claimant was free to drive or not drive the cab during the period of rental, and could take the cab out of taxicab service any time he desired. If the claimant was arrested for violating the law, he paid his own fine. The taxicab was equipped with a 2-way radio system, whereby the company could inform him as to the location of any passenger wanting cab service; and, under his agreement with the company he was supposed to answer such calls, picking up the passengers at the designated place or at the passenger station. The company had the right to refuse to rent a cab to ...