McCormick v. Kitchens

• Decision Date: 23 January 1939
• Docket Number: 27322.
• Citation: 1 S.E.2d 57,59 Ga.App. 376
• Parties: McCORMICK v. KITCHENS et al.
• Court: Georgia Court of Appeals

1 S.E.2d 57

59 Ga.App. 376

McCORMICK v. KITCHENS et al.

No. 27322.

Court of Appeals of Georgia, Division No. 2.

January 23, 1939

Napoleon McCormick filed a claim with the Industrial Board for compensation against Lee Kitchens for an injury alleged to have occurred while McCormick was in the employ of Kitchens. A copy of this claim was mailed to Kitchens. A hearing on the claim was scheduled for July 1, 1936. Pending the hearing claimant and Kitchens entered into negotiations looking to a settlement of the claim, and the hearing was not held. Kitchens failed to comply with his agreement and a request for another hearing was filed with the Industrial Board. The second hearing was set for July 28, 1936. Kitchens was not served with notice of this hearing and it was continued until a later date. On September 4, 1936, a hearing was scheduled to be held at three o'clock, September 15, 1936, the notice of this hearing being mailed to McCormick and Kitchens but not to counsel for McCormick. This hearing was attended by McCormick and Kitchens and his counsel. McCormick testified at this hearing, in substance, that he was working for Kitchens when he was injured; that he did not know Grady King, but that he did know a Mr. Bolster who was in charge of the work; that he saw Kitchens in the woods often, but that Kitchens did not give him any direction in his work; that he did not see Kitchens tell any one but his drivers on the trucks what to do; that the foreman, Bolster, directed all the work. Lee Kitchens testified that he knew Grady King that he had a contract with King to cut logs and put them on his, Kitchens', truck at $3 per thousand feet, with Kitchens furnishing the mules, truck drivers, and trucks that he did not have anything to do with the hours that King worked, or anything to do with the logs that he cut just so long as the logs were cut on the land of Kitchens; that he never did see McCormick until he saw him in the hospital that he took the money earned by McCormick because King had turned the time of McCormick over to him and the money was taken at the request of King; that he did not owe McCormick anything; that he never gave directions to King or the men hired by King, and King did all the hiring and firing; that at the time of the injury there were only two men working for Kitchens, and they were the two truck drivers; that he had a contract with the Southern Crate and Veneering Co. to cut and load the logs on the cars at $10 per thousand; that King subcontracted with him to cut the logs and load them on Kitchens' truck for $3 per thousand; that Bolster Warren was foreman for King, and was not employed by Kitchens but was on the pay roll of King. At the conclusion of the hearing the director stated that since counsel for the claimant was not present the case would be held open to allow the introduction of further testimony should counsel for the claimant so desire.

On October 1, 1936, the Industrial Board notified counsel for the claimant that the case had been heard by Director Slater and that the term of office of Slater had expired as of that date; that another director would have to pass on the case and that if they desired to introduce more evidence another hearing would be ordered. Another hearing was then set for December 4, 1936. This hearing was postponed by agreement on account of the illness of Kitchens. Another hearing was set for February 2, 1937, at which hearing claimant, counsel for claimant, and counsel for Kitchens appeared. The claimant was examined on direct and cross examination. The testimony of the claimant was substantially the same as that given at the other hearing except that he testified that the director had not tried to notify his counsel of the other hearing at the time of the hearing. At a hearing scheduled for February 24 1937, there were no appearances except claimant and his counsel. The director announced at that time that the case would be dismissed until the proper parties could be determined, when the case would be redocketed. Being notified that Kitchens was out of the State, the Industrial Board notified counsel for the parties that the case would be placed on the inactive docket until such time as the parties could be present. Thereafter, acting upon the request of counsel for the claimant, another hearing was scheduled for March 15, 1938, at which hearing Kitchens and McCormick appeared though neither was represented by counsel. Counsel for the claimant was notified of the hearing and voluntarily absented themselves therefrom, and specially waived their presence by a letter to the Industrial Board. The testimony at this hearing was substantially the same as that which had been adduced at the other hearings. On April 28, 1938,...