Mansfield Enterprises, Inc. v. Warren

• Decision Date: 16 July 1980
• Docket Number: No. 59601,59601
• Citation: 154 Ga.App. 863,270 S.E.2d 72
• Parties: MANSFIELD ENTERPRISES, INC. et al. v. WARREN et al.
• Court: Georgia Court of Appeals

Page 72

270 S.E.2d 72

154 Ga.App. 863

MANSFIELD ENTERPRISES, INC. et al. v. WARREN et al.

No. 59601.

Court of Appeals of Georgia.

Argued March 6, 1980.

Decided June 13, 1980.

Certiorari Denied July 16, 1980.

George P. Donaldson III, Savannah, for appellants.

Leonard H. Conger, Bainbridge, for appellees.

SOGNIER, Judge.

Mansfield Enterprises, Inc. appeals from an order of the Superior Court of Clay County setting aside an award of the State Board of Workers' Compensation which denied benefits to appellees. Appellees are the widow and minor children of Danny Lashley, who was killed during a robbery at appellants' store. Lashley was an applicant for the job of store manager. The evidence disclosed that Lashley worked at the store for two days prior to the shooting and had been recommended for the position by the acting manager of the store. The evidence also disclosed that deceased had worked the cash register, stocked shelves and waited on customers. The board, upon de novo consideration of all the evidence, found that a contract for hire could not be implied from the evidence presented. The board made no mention in its findings of fact that the deceased had worked at the store during the time that he was being considered for the job. The board found that there had been no "meeting of the minds between deceased and Mansfield and a contract for hire never came into existence."

The Superior Court reversed the board's award as being contrary to law and ordered that the matter be recommitted to the board for further consideration of the evidence. We affirm.

We are mindful of the controlling principles of appellate review in workers' compensation cases as articulated and adopted by this court on numerous occasions, and we agree that the board's award, when supported by any evidence, is conclusive and binding. Howard Sheppard, Inc. v. McGowan, 137 Ga.App. 408, 224 S.E.2d 65 (1976); Argonaut Ins. Co. v. Cline, 142 Ga.App. 603, 605, 236 S.E.2d 876 (1977); Maryland Cas. Co. v. Jenkins, 143 Ga.App. 192, 193, 237 S.E.2d 664 (1977). However, the award cannot be based upon an erroneous legal theory which precluded consideration by the board of evidence which, if considered, would have authorized a contrary result. Williams v. Morrison Assur. Co., 138 Ga.App. 191, 193, 225 S.E.2d 778 (1976); Fidelity & Cas. Co. v. Hodges, 108 Ga.App. 474, 475, 133 S.E.2d 406 (1963).

The superior court based its reversal on Howard Sheppard, Inc. v. McGowan, supra, a case which involves a factual situation similar to the instant case. There the employer was considering an applicant for a job as truck driver. The applicant worked for the employer for three days so that the employer could determine the applicant's qualifications for the job. No contract for hire ever came into existence in that case. In fact, the employer had decided not to hire the applicant when on the third day of his test period the applicant was killed driving the employer's truck. Based on these facts this court held that the evidence showed a master-servant relationship; that the employer received the benefit of the deceased's services; and that rendition of services valuable to another implied a promise to pay the reasonable value thereof. Id. 137 Ga.App. at 411, 224 S.E.2d 65. Here, as in Howard Sheppard, Inc., the evidence satisfied...