Glens Falls Indem. Co. v. Clark
| Decision Date | 27 June 1947 |
| Docket Number | 31619. |
| Citation | 43 S.E.2d 752,75 Ga.App. 453 |
| Parties | GLENS FALLS INDEMNITY CO. et al. v. CLARK. |
| Court | Georgia Court of Appeals |
Rehearing Denied July 16, 1947.
Syllabus by the Court.
Under the evidence in this case, a finding was demanded as a matter of law that the claimant was an employee and that he was injured in an accident arising out of and in the course of his employment, and the Superior Court properly reversed the award denying him compensation on the ground that he was an independent contractor and remanded the case to the State Board of Workmen's Compensation for determination in accordance with such ruling and judgment.
M. B Clark filed a claim for compensation with the State Board of Workmen's Compensation against his employer, John R Clark, Jr., trading as John R. Clark & Son, and the insurance carrier, Glens Falls Indemnity Company, on account of an injury sustained by him, which he claimed arose out of and in the course of his employment. The hearing director found in favor of the employer and insurance carrier and denied compensation to the claimant on the ground that the claimant was an independent contractor and not an employee at the time he was injured. The Superior Court reversed the award and finding of the hearing director, and the employer and the insurance carrier excepted.
It appears from the evidence that the claimant sustained an injury, which arose out of and in the course of his employment. The controlling question before this Court is whether or not there is any competent evidence in the record to support the finding of the hearing director, that the claimant was not an employee but was an independent contractor.
The evidence on the hearing with reference to this feature of the case was substantially as follows: The employer, John R. Clark, Jr., testified to the effect that he was engaged in the ice delivery business, and delivered ice by trucks, horses and wagons; that he employed the claimant on or about December 15, 1945, in connection with the maintenance and repair part of his business, repairing trucks for future summer business; that on this particular trip, he employed the claimant to go to South Carolina and get one of his trucks and bring it back and repair it; that he wanted the truck brought back to Savannah and repaired; that the claimant was to bring the truck back by towing it with his truck; that the claimant was a mechanic and he had employed him on previous occasions to repair his trucks, and that in 1943 the claimant worked regularly for him as a mechanic that he paid the claimant $10 a day, which was to cover a reasonable number of hours, presumably eight hours a day; that on this particular occasion, he employed the claimant just to repair that particular truck with the understanding that the claimant was to repair the other trucks 'as time went through the winter when we didn't have anything to do'; that the claimant had a business which employed him approximately three days a week and they 'figured' that the claimant would work about three days a week with the witness; that the claimant was going to work about three days a week for the alleged employer for a sufficient length of time to get this particular truck and repair the trucks and with the understanding that he would work on until springtime; that the claimant had been doing that in the past; that the witness expected to use the truck that the claimant was repairing and the other trucks in his business; that this work was incidental to the operation of the ice delivery business of the employer, as he had a repair shop; that he had agreed with the claimant to be at his place of business the morning that the claimant was to leave to go after the truck, but that the witness was in bed when the claimant came by his home about 6 o'clock that morning; that he told the claimant to go by the shop and get some tires and a chain, which were necessary for the claimant to use in bringing back the truck; that another employee of the witness was going with the claimant to help with the truck; that the witness had been at the ice house about five minutes when he heard a blast and went and found that the claimant had sustained a broken leg and an injury to his hand when the head blew off of a tire that the claimant was servicing with air and which was to be used on the truck he was to bring back; that the claimant and the witness were cousins; that the claimant was in the ice business at Savannah Beach; that he went to see the claimant about getting his truck back from South Carolina and originally the claimant was to use one of the trucks of the witness, but that the witness did not have a truck available that morning and he agreed to pay the claimant $10 for his labor and $10 additional for the use of his truck; that the witness repaired all of his delivery equipment through the winter and it was understood that the claimant was to work for him; that the claimant had already repaired his own delivery equipment at Tybee and was going to help the witness through the winter; that on this particular truck his services would have ceased when he brought the truck to Savannah and repaired it, as you would not go on working on the same thing over and over again; that if the accident had not happened and the claimant had gone to South Carolina and brought back the truck and required it, his services for the witness would have been at an end except for his securing the claimant's services at a future date if they were needed, and the witness would have needed him; that he did not expect the claimant to work steady in repairing the truck, as he would have to conduct his own business and he was to do the work at times when his own business would permit him to do it; that he did not pay the claimant anything for the transaction in which he was injured, because the claimant was hurt by the time he got to the place that morning and he did not know whether the claimant felt like he owed him anything or not; that, under their agreement, he would have paid him $10 for each day that he worked on the truck and $10 for the use of his truck, so that if the claimant had brought the truck back to the witness, he would have received $20 for such services that day; that the claimant worked for the witness in 1943, which was a steady job; that at that time, the claimant did not have his own business at Savannah Beach; that the claimant had worked for the witness since he was 12 or 14 years old, except when he was going to school; that the cab on the truck that the claimant was going after had to be replaced and the fenders and the motor had to be repainted and reconditioned; that the tire which injured the claimant was the one that was to be used on the truck that the claimant was going to bring back, and the work of the claimant in fixing that tire was the first bit of work that the claimant did towards putting the truck in condition; that this tire belonged to the witness.
The claimant testified in his own behalf substantially as follows: that he went to work for John R. Clark, Jr., the alleged employer, on or about December 15, 1945; that he had heard Mr. Clark's testimony and their agreement was just like he testified it was; that claimant was to work for Mr Clark; that he had worked for him a number of times and usually ended up by...
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