Flowers v. U.S. S. Agri-Chemicals, AGRI-CHEMICALS
Decision Date | 16 July 1976 |
Docket Number | AGRI-CHEMICALS,No. 52476,No. 1,52476,1 |
Citation | 228 S.E.2d 392,139 Ga.App. 430 |
Parties | Mrs. Truman FLOWERS v. U.S.S.et al |
Court | Georgia Court of Appeals |
Shelfer, Shelfer & Eldridge, Frank M. Eldridge, Decatur, for appellant.
King & Spalding, A. Felton Jenkins, Jr., Charles H. Tisdale, H. Lowell Hopkins, Atlanta, for appellees.
In this wrongful death action, plaintiff, mother of the deceased, asserts that Johnny Ralph Royal, driver of the offending vehicle, is either the employee or borrowed servant of co-defendant U.S.S. Agri-Chemicals Division of United States Steel Corporation. The fatal collision occurred after Royal, driving a truck owned by co-defendant Norman W. Peacock, had delivered a load of fertilizer to a customer of U.S.S. Agri-Chemicals and was on his way back to the latter's plant. After extensive discovery, U.S.S. Agri-Chemicals moved for summary judgment. Its contention was that it exercised no control over either Royal or Peacock, and that Royal was an employee of Peacock, an independent contractor. The trial court granted the motion and plaintiff appeals.
The essential facts delineating the relationship between the defendants are not disputed. Pursuant to an oral contract with U.S.S. Agri-Chemicals, Peacock was a hauler of the company's products to its customers during its busy season. He was remunerated by the company on a trip-by-trip basis according to the tonnage hauled and distance traveled. Peacock supplied his own truck, and on almost all occasions, Royal as a driver. Peacock was only one of many such contract haulers. Loads were never guaranteed but were given on a first come-first served basis. U.S.S. Agri-Chemicals' instructions to Royal consisted of telling him what product the load consisted of, the amount of the product, and its destination. The company did not control the manner of Royal's driving, the routes he would use, or when delivery would be made. If his truck was loaded too late in the day to effect a delivery before the customer's closing time, Royal, at his option, either left it at the plant or took it home overnight for delivery the next day. Royal was not required to return to the plant after making a delivery. Neither Royal nor Peacock was involved in the billing of the company's customers.
Peacock billed the company on an average of once a week for the loads delivered. U.S.S. Agri-Chemicals paid Peacock directly, never Royal, and did not withhold any income taxes from these payments. Neither Peacock's truck nor Peacock or Royal individually were covered under any of the company's insurance policies. Peacock supplied and paid for his own liability and cargo insurance. He also paid for the gas and oil for his truck. Peacock paid Royal for his services, and he alone had the right to replace or discharge Royal. Held:
1. It is clear that neither Peacock nor Royal was under the control or direction of U.S.S. Agri-Chemicals in the performance of their work, and that Royal was an employee of Peacock, an independent contractor. This case, on its facts, is controlled by Farmers Mutual Exchange of Commerce, Inc. v. Sisk, 131 Ga.App. 206, 205 S.E.2d 438 and citations therein. Here, as in Sisk, U.S.S. Agri-Chemicals 'did not have, nor did it assume, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain results in conforming to the contract.' Farmers Mutual Exchange of Commerce, Inc. v. Sisk, supra, 131 Ga.App. p. 208, 205 S.E.2d p. 440. See Harvey v. C. W. Matthews Contracting Co., Inc., 114 Ga.App. 866(3), 152 S.E.2d 809.
2. These same facts also negate recovery under the borrowed servant doctrine. See Helms v. Young, 130 Ga.App. 344, 350(2), 203 S.E.2d 253. The test used to determine if one is a borrowed servant of another is comprised of three elements: (1) the special master must have complete control and direction of the servant for the occasion; (2) the general master must have no such control; (3) the special master must have the exclusive right to discharge the servant, put another in his place, or put him to other work. Helms, supra; Fulghum Industries v. Pollard Lumber Co., 106 Ga.App. 49, 52, 126 S.E.2d 432.
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