Malcom v. Sudderth

• Decision Date: 20 November 1958
• Docket Number: No. 1,No. 37253,37253,1
• Parties: Lillious MALCOM v. E. W. SUDDERTH
• Court: Georgia Court of Appeals

Page 367

106 S.E.2d 367

98 Ga.App. 674

Lillious MALCOM v. E. W. SUDDERTH.

No. 37253.

Court of Appeals of Georgia, Division No. 1.

Nov. 20, 1958.

Syllabus by the Court

The award of the State Board of Workmen's Compensation was supported by ample competent evidence and should not have been disturbed by the judge of the superior court.

Lillious Malcom filed a claim for workman's compensation against Erskine W. Sudderth, employer, for injuries sustained while working at the employer's sawmill.

The only ground of the appeal which the employer insisted upon before the judge of the superior court was that there was insufficient evidence to support an award that he was an employer covered by the Workmen's Compensation Act, Code, § 114-101 et seq.

On the hearing of the claim Malcom testified in part: 'On or about July 13, 1956, I was employed by Erskine Sudderth running an edger at the saw mill and the pin come out of the roller and I went to put the pin in and I got my fingers cut off; I got the first two from the thumb cut off on my left hand; there were two joints cut off of each of the two fingers; Erskine hired me; I didn't have no certain duties; he put me to running the edger; William Malcom caught the lumber, he is my brother; Cliff Dodd carried strips and Robert Dodd carried slabs; I know Winton Sudderth, he was dragging logs with the tractor from the woods to the mill; I know Gene Kendricks, he was driving a tractor like Winton; I know Buck Turner and he was employed there, he was turning logs; I know Jack Dodd and he was employed there rolling down logs; I know J. T. Dodd, he was employed there and he was helping in the woods and at the mill too; I know Billy Sudderth, he was employed there hauling lumber; I know Grady Sudderth, he was employed cutting timber; I know Tom Jones, he was employed there dragging logs with a mule; I know David Bailey, he was employed there helping cut logs; I know Ralph Wheeler, he was employed there cutting lots; I know a man named Mr. Thomas, he was dragging logs with a mule; Mr. Sudderth worked there too, he was sawing; as I can remember all of those were working there on July 13, 1956; I drove a tractor beforehand and I drug a few logs beforehand in the woods; from the time the tree is cut down the man with the mule drags them up into a pile of six logs and the tractor comes along and picks them up and takes them on to the mill and they saw them; Erskine Sudderth operated the saw; I have drug some of the logs from the woods to the mill; Mr. Sudderth never did tell any of us what to do and such as that, he just cranked up every morning at 8 o'clock; if he needed somebody to pull logs out of the woods, he would tell some of us to do it, or the ones driving the tractor then to do it; other than dragging logs out of the woods and helping on the saw I helped run the power saw, the saw to cut down trees and I trimmed up some and tailed the edger some and I run the edger, that's what I was doing when I got my fingers cut off; normally it takes a good many men to run a sawmill; I averaged around $35 on up to $40 a week; to operate a saw mill it takes about 10 hands, if not more; seven men were working at the mill the day I was injured counting Erskine; they were Cliff Dodd, Robert Dodd, William Malcom, Erskine Sudderth, J. T. Dodd, Jack Dodd and myself; Jack Dodd was rolling down logs and getting us water; he is 12 years old; Cliff Dodd is Jack's daddy; Cliff Dodd and Jack Dodd are related to me; Tom Jones was dragging logs with a mule at the woods, he is about 60 years old; David Bailey was in the woods cutting timber; Buck Turner was turning logs at the mill; Billy, Winton and Grady Sudderth are Erskine's boys; I do not know exactly how far it was from where the people were cutting timber to where the mill was located; I had not been cutting timber at this particular location, I had been working at the sawmill; the people that were doing the logging were going back and forwards from the mill into the woods; we had two mules down there logging that day; Tom Jones and Mr. Thomas were using the mules; Winton Sudderth and Gene Kendricks were using the tractors; I am absolutely sure that Tom Jones was working there on July 13 and as best I can remember David Bailey was working there on July 13th Mr. Sudderth stayed at the mill all of the time, he was running the saw; I saw Grady Sudderth, Gene Kendricks, and Ralph Wheeler during the daytime, during the time I was sawing; Erskine furnished the power saws to cut the logs with, he had a bunch of them; I do not know who owned the saws; I do not know who furnished the gas for the chain saw, all I know is they would just bring in a barrel at a time; Billy Sudderth was hauling lumber with a truck; Billy Sudderth lived in the house with his father at the time of the accident; I do not know how much Jack Dodd made, he was an 11 year old boy; this gasoline that was brought in there in barrels was brought by Erskine Sudderth on the truck; he always brought it; after he got it there he put it there where it would be close to the motor and stuff; it was used for tractors, power saws and motors, to crank the motor up; Grady Sudderth operated the saw some, I guess about an hour when Erskine had to go out into the woods, or something or other; Erskine didn't go over in the woods often, whenever he did, Grady or Bill one would operate the saw; I have gone out and drug the logs in from the woods myself.'

William Malcom testified in part: 'I am the brother of Lillious Malcom; I was working at Erskine Sudderth's saw mill on July 13, 1956; Erskine Sudderth operated the saw at this mill; I carried lumber from the edger; I know Cliff Dodd and he was working on that day; he was carrying strips or slabs one, I wouldn't be sure; I know Robert Dodd, I don't exactly know what he was doing on that day, but he was there at the mill; Winton Sudderth was dragging logs; Gene Kendricks was dragging logs; Buck Turner was turning logs; Jack Dodd wasn't there that day; he is a boy; I know J. T. Dodd was helping out with the turning of the logs; Billy Sudderth was hauling lumber; Grady Sudderth was in the woods cutting logs; Tom Jones drug logs part of the time; Benjamin Thomas was dragging logs part of the time; David Bailey helped in the woods with the power saw; Ralph Wheeler helped cut timber part of the time and helped haul lumber some; George Wood turned logs a while; all of these people were working there on July 13, 1956 except David Bailey; they were all employed, including David Bailey, but he just wasn't there that day; I have drug logs from the woods; I have operated a tractor; I have seen Grady Sudderth operate the saw a few times, but not very many; I have seen Erskine a few times walking around in the woods; I have never seen him working in the woods; Jack Dodd hadn't been away for a right smart time, I won't say exactly how long it had been; the ones working at the mill where I was working on July 13th were Buck Turner, J. T. Dodd; Cliff Dodd, me and my brother and Robert Dodd I think; in other words, six and Mr. Sudderth at the mill makes seven people at the mill; I am not certain about Robert Dodd; I just brought the logs from the woods to the saw mill, from where they were piled there to the saw mill; Erskine told me to do that.'

Erskine Sudderth testified in part: 'On July 13, 1956 Lillious Malcom was working for me; my occupation is mostly sawmilling, these two Malcom boys and two Dodds and that Dodd boy were working for me at the mill; I had two Malcom boys, three Dodd man and counting myself there at the mill that day made six; as to how I had the other people employed, I had Grady and Ralph Wheeler contracted to cut the logs; I had a contract with them; I give them $6.00 a thousand and they cut them when they got ready and they worked as long as they wanted to; that's my son Grady Sudderth and Ralph Wheeler; Ralph and Grady furnished the saw; they bought the saw for that particular purpose; they used their own gasoline in that saw, they didn't use mine; I did not have any control over the manner in which they performed their work; I never had a thing to do with the manner in which they worked or which was they did it; I never had nothing in the world to do with what they did or how they performed their work; Winton and Kendricks did my logging; Gene Kendricks and Winton Sudderth were dragging logs with a tractor; I was paying these two people by the thousand; $4.00 per thousand for logging; I guess that I had been at this particular location about a week and a half; on this particular day, the day the injury occurred, I had Mr. Thomas hired dragging with a mule; Buck Turner wasn't working for me on July 13th; I don't think he was in my employ on July 13th. I didn't have a man named Tom Jones working for me on July 13, 1956; I didn't have an eleven year old boy employed by the name of Jack Dodd, he wasn't even there; Billy, that boy of mine, was hauling lumber for me with the truck; he was living with me; I paid Billy $1.75 a thousand for hauling lumber; I sure didn't supervise the work of Winton Sudderth and Gene Kendricks; I just hired Winton Sudderth to log it at so much a thousand, that's all there is to it; I didn't tell him how or when to log, he knew how to log, I didn't tell him nothing; I did the sawing myself at the mill; I didn't have time to go out in the woods and supervise any of the people out there; in addition to the six--five people at the mill and myself I had Mr. Thomas working in the woods drawing logs with a mule; I didn't have anyone else employed in the woods, I didn't have anything to do with the rest of it at all myself; I don't know whether I received a notice to produce certain papers or not; I don't remember whether my lawyer asked me anything about my pay roll records or not; he didn't ask me to bring nothing to this hearing; I do not have them with me; I kept it in a book of how much I paid and how I...