Manhattan Industries, Inc. v. Paul

• Court: Georgia Court of Appeals
• Writing for the Court: DEEN; CLARK; EBERHARDT
• Citation: Manhattan Industries, Inc. v. Paul, 191 S.E.2d 484, 126 Ga.App. 595 (Ga. App. 1972)
• Decision Date: 16 June 1972
• Docket Number: No. 3,No. 47242,47242,3
• Parties: MANHATTAN INDUSTRIES, INC. v. Jimmy E. PAUL

Page 484

191 S.E.2d 484

126 Ga.App. 595

MANHATTAN INDUSTRIES, INC. v. Jimmy E. PAUL.

No. 47242.

Court of Appeals of Georgia, Division No. 3.

June 16, 1972.

Rehearing Denied July 6, 1972.

N. Forrest Montet, Atlanta, for appellant.

T. J. Lewis, Jr., Atlanta, for appellee.

Syllabus Opinion by the Court

DEEN, Judge.

Where the trial court overrules the defendant's motion for summary judgment this court will not reverse unless from the entire record construed against the movant it appears that there is an absence of any genuine issue as to all material facts and that the defendant is entitled to a judgment as a matter of law. Atlanta Gas Light Company v. Roberson, 120 Ga.App. 361, 170 S.E.2d 587. The sole issue presented to us is whether the injured plaintiff was an employee or independent contractor under a one-shot oral engagement to pick up a rental truck for the appellant and drive it to a designated location. Plaintiff was injured on the defendant's premises prior to departure and while on his way to the front office to turn in the truck rental agreement. He was never carried on any of the defendant's records as an employee, was never paid, and indeed there is evidence that the question of compensation was not discussed in advance. The plaintiff's evidence indicates that he had no instructions beyond the place where the truck was to be delivered. Whether as an employee he is barred from recovery in a tort action because of contributory negligence, the fellow servant rule, or the exclusiveness of the remedy afforded by workmen's compensation are all questions which must await the result of a trial.

Judgment affirmed.

CLARK, J., concurs.

EBERHARDT, P.J., concurs in the judgment only.

EBERHARDT, Presiding Judge, concurring specially.

There may possibly be an issue of fact for resolution in this case, and for that reason alone and under the applicable rules of summary judgment I...