Hampton v. McCord, s. 52952 and 52953

• Decision Date: 05 January 1977
• Docket Number: No. 3,Nos. 52952 and 52953,s. 52952 and 52953,3
• Citation: 232 S.E.2d 582,141 Ga.App. 97
• Parties: James HAMPTON et al. v. C. L. McCORD et al. Lena Maw HAMPTON v. C. L. McCORD et al
• Court: Georgia Court of Appeals

Page 582

232 S.E.2d 582

141 Ga.App. 97

James HAMPTON et al. v. C. L. McCORD et al.

Lena Maw HAMPTON v. C. L. McCORD et al.

Nos. 52952 and 52953.

Court of Appeals of Georgia, Division No. 3.

Jan. 5, 1977.

Rehearing Denied Jan. 27, 1977.

Mundy & Gammage, Gerry E. Holmes, Cedartown, for appellants.

Smith, Shaw, Maddox, Davidson & Graham, James D. Maddox, Rome, Parker & O'Callaghan, James I. Parker, Cedartown, for appellees.

SMITH, Judge.

Seeking damages for the wrongful death of their minor son, plaintiffs, James Hampton and Lena Mae Hampton, brought separate suits against Jerry Wayne Gilham, C. L. McCord and the Georgia Kraft Company. The lawsuits arose out of a collision between a motorcycle on which plaintiffs' son was a passenger and a truck driven by defendant Gilham. The collision occurred as Gilham, a producer in the pulpwood industry, hauled a loader to a log cutting site.

Several weeks before the collision, Gilham purchased the truck and loader from defendant McCord. McCord was a pulpwood dealer for defendant Georgia Kraft Company. As a pulpwood dealer, McCord acted as a broker in transactions involving the sale of pulpwood to the Georgia Kraft Company. He informed Gilham and other producers as to the whereabouts of various timber cutting jobs. If the producer was interested in the job, he proceeded to the designated site to begin logging operations. When the producer brought the pulpwood to defendant Georgia Kraft Company, payment was made to McCord on a unit basis. McCord then paid the producers, deducting sums for workmen's compensation premiums. In Gilham's case, McCord also deducted certain sums for the equipment which Gilham had purchased.

Each complaint alleged that plaintiffs' decedent was killed by the negligence of defendant Gilham; that Gilham was the servant of defendants McCord and Georgia Kraft Company; and that Gilham was acting within the scope of his employment at the time of the collision. Defendants answered, denying the material allegations of the complaint.

Following discovery, summary judgment was granted on behalf of defendant Georgia Kraft Company. No appeal was taken from that judgment. Thereafter, defendant McCord filed a summary judgment motion. Before the court rendered its decision on McCord's motion, plaintiffs filed amendments to their complaints. The amended complaints alleged that McCord was negligent in hiring defendant Gilham and that McCord's negligence was the proximate cause of the death of plaintiffs' son.

The trial court granted defendant McCord's motion for summary judgment. These appeals followed, presenting two questions for review. First, does a genuine issue of material fact exist as to whether Gilham was an independent contractor? Second, does a genuine issue of material fact exist as to whether McCord was negligent in hiring Gilham?

1. 'The true test whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contradistinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work. (Cits.)' Banks v. Ellijay Lumber Co., 59 Ga.App. 270, 272, 200 S.E. 480, 481.

The evidence presented in support of McCord's motion for summary judgment demonstrates that McCord did not have the right to control the time, manner or method of Gilham's work. Gilham himself chose the timber cutting jobs which he undertook. McCord did not have the right to instruct Gilham as to which tracts he was to cut. McCord did not have the right to instruct Gilham as to when or how the timber was to be cut. And McCord did not have the right to instruct Gilham as to who he was to employ or discharge. Accordingly, one must conclude that an agency relationship did not exist between McCord and Gilham.

Our conclusion is corroborated by the affidavit of McCord. The purported master averred that 'Jerry Wayne Gilham was not, on August 18, 1974, or at any other time, an employee, agent or servant of mine.' Of course, the bare denial of an agency relationship is a statement of fact when made by a party to the alleged relationship. Salters v. Pugmire Lincoln-Mercury, Inc., 124 Ga.App. 414, 184 S.E.2d 56. And this fact is sufficient to support a motion for summary judgment in an action based upon the doctrine of respondeat...