Jordan v. Townsend

• Decision Date: 23 February 1973
• Docket Number: 3,No. 47585,2,Nos. 1,47585,s. 1
• Citation: 128 Ga.App. 583,197 S.E.2d 482
• Parties: Rodney D. JORDAN et al. v. L. C. TOWNSEND et al
• Court: Georgia Court of Appeals

Page 482

197 S.E.2d 482

128 Ga.App. 583

Rodney D. JORDAN et al. v. L. C. TOWNSEND et al.

No. 47585.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

Feb. 23, 1973.

Rehearing Denied March 22, 1973.

Adams, Adams, Brennan & Gardner, Edward T. Brennan, Richard A. Rominger, Savannah, for appellants.

Bouhan, Williams & Levy, Leamon R. Holliday, III, Savannah, for appellees.

Syllabus Opinion by the Court

QUILLIAN, Judge.

This is an appeal by the plaintiffs (appellants) from an order granting a summary judgment in favor of the defendant (appellee), Union Camp Corporation.

Plaintiff Rodney Dewayne Jordan, a minor, his three sisters and his mother and father, brought suit against L. C. Townsend, Willie West and Union Camp Corporation as the result of an automobile wreck. The complaint alleges that Union Camp employed Townsend and West to cut pine trees from Union Camp's land in southeast Georgia and to deliver same to Union Camp's plant in Savannah. On the date of the wreck West was driving a tractor-trailer owned by Townsend and had just completed delivery of a load of pine logs to Union Camp's Savannah plant, which logs had been cut by Townsend, his agents and servants, including West, from Union Camp's property; and that at the time of the matters complained of defendant West was in and about the business of Union Camp.

Union Camp in its answer neither admitted nor denied the allegations with respect to how the collision occurred, but contended at that time L. C. Townsend was an independent contractor and therefore Union Camp could not be held liable for any negligence of L. C. Townsend or his agents or employees.

Union Camp filed a motion for summary judgment which was supported by affidavits and exhibits. The motion was granted and the case is here for review. Held:

The question for determination is whether or not there were genuine issues of material fact with respect to whether L. C. Townsend was an agent-employee of Union Camp Corporation, or was an independent contractor.

'In determining whether the relationship of parties under a contract for performance of labor is that of employer and servant or that of employer and independent contractor, the chief test 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.' Hotel Storage, Inc. v. Fesler, 120 Ga.App. 672, 674, 172 S.E.2d 174, 176.

The employment contract between Union Camp and Townsend was an exhibit filed by the defendant in support of the motion for summary judgment. The contract provided that Union Camp would have no control over the time, method or manner in which Townsend performed the timber harvesting services. However, the contract further stated: 'Contractor will perform such services with his own employees, labor force, and equipment, or by or through his subcontractors. In so doing, contractor or his subcontractors will observe generally accepted forestry and logging practices and the reasonable rules adopted by owner as applicable to timber harvesting of said timberlands. Owner shall have no control over contractor's, or his subcontractors', methods, employees or equipment or the time of the performance of said contract except as herein provided and contractor, or his subcontractors, will perform each contract by his own methods, except for such written specifications as may be furnished by owner.'

This provision of the contract retained in Union Camp the authority to control the manner and method of the harvesting. There were no restrictions on what 'reasonable rules' might be adopted by Union Camp or what the rules might consist of. Whether Union Camp did in fact exercise this authority is not material, there need only be the right to control the time, method and manner of executing the work. Old Republic Insurance Co. v. Pruitt, 95 Ga.App. 235, 97 S.E.2d 521.

The granting of the summary judgment was error.

Judgment reversed.

BELL, C.J., and PANNELL, DEEN, EVANS and STOLZ, JJ., concur.

HALL and EBERHARDT, P. JJ., dissent.

CLARK, J., not participating.

HALL, Presiding Judge (dissenting).

In my opinion there is very little predictability to be found in the appellate decisions of this state on the distinction between servant and independent contractor. The control or right to control test is to say the least esoteric. 'The distinction between servant and independent contractor is commonly said to turn on whether the employer has retained control or right of control over the details of the work, or as one writer has put it whether the employer has hired services or has bought the product of those services. . . . Perhaps the control test has been overemphasized in judicial reasoning. We have seen how tenuous, and often fictitious, control is even in clear master and servant cases, and how its use as a justification of vicarious liability is generally associated with the felt need for finding some sort of fault in the master. We have seen too how this attempted justification falls short and how the chief warrant for vicarious liability must be found in the principle that an enterprise (and its beneficiaries) should pay for the losses caused by the risks which it creates (even without its fault). In this view the existence of a general right of control may afford an added subsidiary reason for holding the employer who has it (e.g., an admonition to care in selecting a competent or a financially responsible contractor), but its absence would scarcely justify conferring upon an entrepreneur immunity for risks of his business. . . . If we are looking for risks fairly allocable to an enterprise then there is much significance in the question 'whether or not the work is a part of the regular business of the employer.' The real question in all independent contractor cases is whether a man may 'farm out' or 'lop off' some of his affairs and escape liabilities in connection with them. No general policy forbids this . . . The primary question is whether the task which caused the injury was actually and in good faith farmed out to another. It is here that the question of control comes in. As a generalization it may be said that an employer has farmed out or turned over a task to another where he has relinquished control over it. But control is not the all important thing it is sometimes made out to be and it is not a constant factor. The master, of course, always does have the general right of control over his employees in the sense that he can give them orders, train them, hire and fire them. But he very often lacks any effective spot control over the conduct that brings about an accident. There are many independent contractor situations in which the employer has far greater spot control over the details of the work . . . Business enterprises, too, commonly farm out many tasks which may well be regarded as normal incidents to...