Macon Dairies Inc v. Duhart, 29774.

• Decision Date: 12 March 1943
• Docket Number: No. 29774.,29774.
• Citation: 24 S.E.2d 732
• Parties: MACON DAIRIES, Inc. v. DUHART et al.
• Court: Georgia Court of Appeals

24 S.E.2d 732

MACON DAIRIES, Inc.

v.DUHART et al.

No. 29774.

Court of Appeals of Georgia,

Division No. 1.

March 12, 1943.

Syllabus by the Court.

The evidence supports the award of the Industrial Board in favor of the partial dependents, and the record discloses no cause for reversing the judgment affirming the award.

Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.

Proceeding under the Workmen's Compensation Act by Ruel Duhart and Annie May Duhart, compensation claimants, against the Macon Dairies, Inc., alleged employer, to recover compensation for the death of claimants' sixteen-year-old son, Frederick Duhart. A single director of the Industrial Board adjudged that alleged employer pay claimants certain compensation. The full board sustained the finding of the single director, except as to allowance of attorney's fees. To review a judgment of the superior court affirming the award of the full board, the alleged employer brings error.

Judgment affirmed.

Edward F. Taylor, of Macon, for plaintiff in error.

Thomas A. Jacobs, Jr., of Macon, for defendants in error.

BROYLES, Chief Judge.

Ruel Duhart and Annie May Duhart filed with the Industrial Board a claim for compensation against Macon Dairies, Inc., for the death of their sixteen-year-old son, Frederick Duhart. The single director adjudged that the defendant pay the claimants $2.97¹/₂ weekly for a period of three hundred weeks from the date of the accident, $100 as funeral expenses, and $50 attorney's fee. The full board sustained the finding of the single director, except as to the allowance of attorney's fees, and on appeal the judge of the superior court affirmed that judgment.

Counsel for Macon Dairies, Inc., excepted to the judgment rendered by the judge of the superior court sustaining the findings of the Industrial Board, and makes the following contentions in his brief: "(1) The deceased * * * was not an employee of Macon Dairies, Inc. (2) The accident did not arise out of and in the course of the employment. There was a deviation from the business. (3) The employee was not contributing $3.50 per week to the claimants, but only $2.50 per week, by the uncontradicted evidence in the case, and, therefore, the rate of compensation is too high." (4) The employer did not have ten employees regularly in its employ, and did not come under the compensation act.

Frederick Duhart was killed while riding on one of the defendant's trucks driven by J. E. Brantley when the truck collided with an automobile. The defendant was engaged in the business of selling milk, and owned four trucks in which milk was delivered daily to its customers in the City of Macon. These trucks were kept at the defendant's plant, and each truck had a driver who came to the plant very early every morning to get the milk and deliver it to customers on whatever milk route the defendant instructed him to cover. The defendant furnished gasoline and oil for the trucks and checked the gasoline consumption of each truck "to tell just how he [the driver of the truck] is running his route." The defendant employed J. E. Brantley to drive one of these trucks and paid him ten per cent. of the money collected by him for cash sales and on credit sales made to such customers as the defendant instructed him to credit. Brantley turned in to the defendant each night the proceeds of the milk sales for that day, and was paid his commissions at the end of each week. Brantley "signed for" the milk each morning that was loaded on his truck. Brantley was responsible for any sales made by him on credit unless the defendant authorized him to make such sales. He reported to the defendant's plant at 2:30 o'clock each morning for work. The truck drivers were required to have their trucks back at the plant each night at eight o'clock. It was customary for the drivers of the trucks to carry boys with them to deliver the milk, and Brantley had two negro boys on his truck to make deliveries of the milk. One of those boys was Frederick Duhart, the deceased.

The defendant never directed Brantley to hire the deceased, but its officers knew that he had done so and acquiesced in his em-ployment. It took some time to calculate at the end of each week what the defendant owed Brantley, and sometimes the defendant would advance the boy's weekly wage of $4 and charge Brantley with the amount so advanced. On one occasion at least, and perhaps at other times, the defendant's president, R. M. Holloway, made out the company's check directly to the deceased for his week's wage. The defendant "paid social security on him [Brantley]." Mr. J. J. Holloway, the defendant's secretary and treasurer, testified: "These fellows [the truck drivers] work pretty hard and long hours on the milk route. You get out and run a milk route twelve hours a day for seven days a week, you get sorter stale and need help." He also testified that if a driver lost any milk while he himself was delivering milk to customers he would be held responsible for the lost milk.

Annie May Duhart testified that the deceased lived with her and her husband and turned over to her each week for the support of the family $3.50 of the $4 earned by him, and that the $3.50 was used for the support of the family, and that she earned nothing and her husband had high blood pressure and earned very little, working at occasional odd jobs. It was undisputed that the money contributed by the deceased was necessary for the support of the family and that it was so used. She further testified in substance that Mr. Brantley told the deceased to report for work at the defendant's plant at two o'clock in the morning, and that sometimes the boy was late; that she spoke to Mr. R. Holloway, the president of the defendant company, about getting the boy a bicycle in order that he might get to work on time, and that Mr. Holloway said: "Charlie [the deceased] is all right, but he is late some mornings, " and approved of her getting her son a bicycle to ride to his work.

Eddie Ross, the other boy who worked on the truck with the deceased, swore that Mr. Holloway talked to him about his work and asked him how he liked it; and that witness and the deceased arrived at the plant very early in the morning and loaded the milk on the truck, and that "they would check the trucks every morning." Brantley testified that he often drove his truck off of his milk route three or four blocks to get something to eat for himself and the deceased, and that on the occasion in question he had gone to his regular eating place and gotten a sandwich and eaten it, and was going directly back to his milk route to deliver milk to a regular customer when some one driving a stolen automobile collided with his truck at a street intersection and killed Frederick Duhart at a place one block from the customer's house. The deceased's parents had another boy nineteen years old who contributed little or nothing to the support of the family. Brantley also swore that he had to make his milk deliveries at a certain time, and that if he didn't do so the defendant would discharge him. He also testified that having the boys to deliver the milk enabled him to "cover more territory in a shorter length of time." Ruel Duhart testified that his son, the deceased, gave $3.50 of his entire wage of $4 per week for the support of the family; that this money was not kept separate from other money that he had; and that he (the witness) paid $1 a week on the purchase price of the bicycle purchased for the deceased without knowing how much of the money earned by the boy went on the payments for the wheel. A finding was authorized, from the evi-dence that at the time of the homicide the defendant had regularly in its employment nine employees, exclusive of the boys working on the trucks and delivering milk.

We con not agree with the contention of counsel for plaintiff in error that no compensation should have been allowed in this case because Brantley was an independent contractor and not an employee of Macon Dairies, Inc., and the deceased was Brantley's employee and not...