Howard Sheppard, Inc. v. McGowan
| Citation | 224 S.E.2d 65,137 Ga.App. 408 |
| Decision Date | 28 January 1976 |
| Docket Number | No. 1,No. 51718,51718,1 |
| Parties | HOWARD SHEPPARD, INC. v. Glenda J. McGOWAN et al |
| Court | United States Court of Appeals (Georgia) |
Thomas A. Hutcheson, Sandersville, for appellant.
Paul J. Jones, Jr., Eric L. Jones, Dublin, for appellees.
This appeal by Howard Sheppard, Inc. in a workmen's compensation case asserts error on three grounds: (1) There was no relationship of master-servant; (2) the finding of the administrative judge is contrary to the rules of the Public Service Commission governing common carriers; and (3) the evidence does not support the facts found by the administrative judge.
Appellant is a Class B Common Carrier operating about 25 trucks. On July 19, 1974, when Joseph F. McGowan, Jr. applied for employment as a truck driver he was informed that as a requirement for employment he would have to meet certain standards stated in the Motor Carrier Safety Regulations. These included a road test to demonstrate his ability to handle the type of equipment he would be expected to drive. On the following Monday he reported for the road test which was administered by using a ten-wheel tractor pulling an eight-wheel dump body trailer. He was accompanied by a company employee. He worked that entire day in hauling heavy loads of sand. The employee supervisor reported that McGowan had failed the test, but on the following day the same equipment was assigned to him with directions for him to haul crushed stone from a quarry. He was to travel alone and be followed by another employee who was to test him through observation. On this day he made two trips for appellant, driving in excess of 250 miles and transporting approximately 20 tons of crushed stone or gravel on each trip. At the end of his second day's work he was advised that he again had not passed the test.
Notwithstanding the failures of the two previous days the same tractor-trailer rig was turned over to him on the following day with instructions to resume the hauling of gravel from the quarry. After making one trip during which he was apprehended for speeding, he was returning to the quarry for another load when he was killed in a motor vehicle-railroad crossing collision.
Appellant contended these tests were for the purpose of determining whether McGowan would be employed and that the decision would have been to declare him unqualified for employment, particularly since the speeding violation alone would have merited this conclusion. Appellant did not learn of this violation until after the fatal accident.
Although we are faced with a unique set of facts, the principles of law that are applicable have been well established. Because of the excellence of the extensive briefs supplied by attorney for the appellee, we deem it appropriate to adopt the recital of these controlling principles 1 directly from counsel's brief without quotation marks. They are:
1. A finding of fact by a director or deputy director of the State Board of Workmen's Compensation, when supported by any evidence, is conclusive and binding upon the court, and the judge of the superior court does not have any authority to set aside an award based on those findings of fact, merely because he disagreed with the conclusions reached therein. Indemnity Insurance Company v. O'Neal, 104 Ga.App. 305(3), 121 S.E.2d 689; Department of Revenue v. Graham, 102 Ga.App. 756(2), 117 S.E.2d 902; Hartford Accident & Indemnity Company v. Davis, 73 Ga.App. 10(1), 35 S.E.2d 521 and cits.
2. Upon appeal from an award of the State Board of Workmen's Compensation granting compensation, evidence will be construed in a light most favorable to party prevailing before the board. Fulmer v. Aetna Casualty & Surety Company, 85 Ga.App. 102, 68 S.E.2d 180.
3. Every presumption in favor of validity of award of Board of Workmen's Compensation should be indulged in by reviewing court. Employer's Insurance Company of Alabama v. Brackett, 114 Ga.App. 661, 152 S.E.2d 420.
4. Neither Superior Court nor Court of Appeals has any authority to substitute itself as fact finding body in lieu of Board of Workmen's Compensation. Employers Insurance Company of Alabama v. Amerson, 109 Ga.App. 275, 136 S.E.2d 12.
5. Weight and credit to be given testimony of witnesses and conflicts in evidence are for determination by Workmen's Compensation Board. Wilson v. Aragon Mills, 110 Ga.App. 392, 138 S.E.2d 596; Travelers Insurance Company v. Tucker, 116 Ga.App. 414, 415, 157 S.E.2d 802.
6. Hearing director and full board are vested with exclusive...
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Olds–carter v. Lakeshore Farms Inc.
...distinct from her relationship with Lakeshore, who furnished the truck for her hauling business. See Howard Sheppard, Inc. v. McGowan, 137 Ga.App. 408, 224 S.E.2d 65 (1976) (Driver who did not supply his own truck was treated as an employee.); Workmen's Compensation Appeal Bd. v. Navajo Fre......
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Department of Public Safety v. Boatright
...(1951). The Full Board's findings of fact, when supported by any evidence, are conclusive and binding. See Howard Sheppard, Inc. v. McGowan, 137 Ga.App. 408, 410, 224 S.E.2d 65 (1976). The superior court is not authorized to substitute its judgment for that of the Full Board. See Horton v. ......
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Harper v. L & M Granite Co., Inc.
...and presumption of validity of award should be indulged in by the reviewing court. See generally Howard Sheppard, Inc. v. McGowan, 137 Ga.App. 408(2) & (3), 224 S.E.2d 65 (1976); see Raley v. Lanco Paint, etc., 190 Ga.App. 462, 465(3), 379 S.E.2d 196 (1989). Neither the superior court nor t......
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Workers' Compensation - H. Michael Bagley, Daniel C. Kniffen, John G. Blackmon, Jr., and Phillip Comer Griffeth
...Compensation must be affirmed on appeal if there is "any evidence" to support them. Howard Sheppard, Inc. v. McGowan, 137. Ga. App. 408, 224 S.E.2d 65 (1976). 91. Southwire Co. v. Cato, 250 Ga. 895, 302 S.E.2d 91 (1983). 92. Carter v. Kansas City Fire & Marine Ins. Co., 138 Ga. App. 601, 22......
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Workers' Compensation - H. Michael Bagley, Daniel C. Kniffen, and John G. Blackmon, Jr.
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