Liberty Mut. Ins. Co. v. Henry

• Decision Date: 15 October 1937
• Docket Number: 26358.
• Citation: 194 S.E. 430,56 Ga.App. 868
• Parties: LIBERTY MUT. INS. CO. et al. v. HENRY.
• Court: Georgia Court of Appeals

194 S.E. 430

56 Ga.App. 868

LIBERTY MUT. INS. CO. et al. v. HENRY.

No. 26358.

Court of Appeals of Georgia, First Division

October 15, 1937

Rehearing Granted Dec. 10, 1937.

Judgment Adhered to Dec. 16, 1937.

Syllabus by the Court.

The evidence authorized an award by the Department of Industrial Relations to the claimant. Moreover, even if the claimant was an independent contractor, since the insurance carrier issued a policy to cover the work to be done by the claimant and others, it is bound by the contract of insurance, and cannot set up, as a defense to the claim, that claimant was not subject to the act.

Error from Superior Court, Fulton County; Paul S. Etheridge, Judge.

Proceeding under the Workmen's Compensation Act by J. D. Henry employee, opposed by the Golian Steel & Iron Company employer, and the Liberty Mutual Insurance Company, insurance carrier. To review a judgment of the superior court affirming an award of the Department of Industrial Relations in favor of the employee, the employer and insurance carrier bring error.

Affirmed.

BROYLES C.J., dissenting.

Neely Marshall & Greene, of Atlanta, for plaintiffs in error.

Geo. & John L. Westmoreland, of Atlanta, for defendant in error.

GUERRY Judge.

J. D. Henry filed claim with the Department of Industrial Relations for compensation for injuries received while erecting certain steel work for the Golian Steel & Iron Company. The insurance carrier denied liability and claimed that Henry was not an employee but was an independent contractor. The Department of Industrial Relations awarded compensation and on appeal this award was affirmed by the judge of the superior court.

The evidence discloses that in March, 1935 the Golian Steel & Iron Company (hereinafter referred to as the Golian Company) entered into a written contract with the Georgia Railroad Company to do certain steel erection work on a building of said railroad company to be erected in Atlanta, Ga. This contract provided in part as follows: "4. Consent to transfer. The contractor shall not let or transfer this contract, or any part thereof (except for the furnishing and delivery of material) without the consent of the chief engineer given in writing. * * * 15. Superintendence. The contractor shall constantly superintend all the work embraced in this contract, in person or by the duly authorized representative acceptable to the company." The contract further provided: "Workmen's compensation insurance. The contractor shall comply with all the laws of the State where the contract is to be performed, arising under any 'workmen's compensation act,' and shall at all times carry and pay the premiums on all policies of insurance required by the laws of the State where the work is being performed, under any 'workmen's compensation act,' so that the company shall be fully protected from any and all claims for damages for personal injury, including death, which may arise from operations under this contract whether such operations be by himself, or by any sub-contractor, or any one directly or indirectly employed by either of them." The claimant, together with J. A. Bladen, Grady Stuart, and Tom Veitch, all of whom were steel workers but had never before been associated in any joint enterprise, went to the Golian Company to secure employment in the construction of the building provided for in the above contract. They made a verbal agreement with the Golian Company to erect the steel work for $500 and, according to the claimant's testimony, the payment by the Golian Company of the premium necessary to cover the job with workmen's compensation insurance. The Golian Company had a policy of insurance with the Liberty Mutual Insurance Company covering its general operations and the premium thereon was based on the compensation paid by the Golian Company to its employees during the period of such policy and was to be determined by an inspection of the books of said company. After the contract between the Golian Company and the claimant and his associates was entered into for the erection of the steel work, the Golian Company applied to the Liberty Mutual Insurance Company for coverage under this contract "for the reason that these men did not have insurance and we [Golian Company] wanted to be protected." The Liberty Mutual Insurance Company thereupon issued its certificate to the Georgia Railroad Company (as required by the provisions of the contract between Golian Company and the railroad company) showing that the "steel erection work performed by J. A. Bladen subcontractor" was covered under the compensation policy issued to Golian Company and a premium was paid to the insurance company based on the $500 paid to claimant and his associates. The Golian Company refused to let claimant and his associates begin work until arrangements were made in reference to compensation insurance. The claimant testified that his wages were $1 per hour, 40 hours per week. The Golian Company furnished the materials and the amount received by each partner "that would be our wages." The claimant and his associates were paid each Friday or Saturday as the work progressed and the money was divided among themselves. The work was to be done "according to his instructions" and Mr. De Golian would come down from time to time "to see how the work was progressing," according to the claimant's...