Md. Cas. Co v. Stewart

• Decision Date: 28 February 1947
• Docket Number: No. 31485.,31485.
• Citation: 41 S.E.2d 658
• Parties: MARYLAND CASUALTY CO. et al. v. STEWART.
• Court: Georgia Court of Appeals

41 S.E.2d 658

MARYLAND CASUALTY CO. et al.

v.STEWART.

No. 31485.

Court of Appeals of Georgia,

Division No. 2.

Feb. 28, 1947.

Syllabus by the Court.

The finding of the State Board of Workmen's Compensation, confirming the finding of the single director, was supported by the evidence, and the superior court did not err in sustaining the award in favor of the claimant and in dismissing the appeal.

Error from Superior Court, Emanuel County; R. H. Humphrey, Judge.

Proceeding under the Workmen's Compensation Act by H. l. Stewart, claimant, opposed by Arthur Clifton, employer, and the Maryland Casualty Company, insurance carrier. To review a judgment of the Superior Court sustaining an award of compensation in favor of the claimant, the employer and insurance carrier bring error.

Affirmed.

H. l. Stewart filed a claim with the State Board of Workmen's Compensation against Arthur Clifton as employer and Maryland Casualty Company as his insurer. The defendant Clifton held a contract with the Rural Electrification Authority for the construction of certain electric power lines in Emanuel County, and he entered into an oral agreement with one Cliff Thomas for the latter to haul certain poles used in erecting said lines from Metter, Georgia, to the site of the construction. The claimant was an employee of Thomas and was assisting in that work when he was injured. Thomas testified that he owned two trucks and engaged in public hauling as a part-time business and farmed part-time; that the defendant, Clifton, employed him to haul a number of poles from Metter, Georgia, to the place where the lines were under construction, and agreed to pay him one dollar per pole hauled; and that he under the terms of the agreement, was to haul the poles whenever notified by the defendant to do so. Clifton testified as to the agreement that he first went to Thomas to obtain an estimate of the cost of hauling the poles, and at that time he told Thomas that he might want him to haul some of the equipment and the poles for him if he should secure the contract with the Rural Electrification Authority; and that he hadno further conversation with Thomas until Friday or Saturday [before the date of the accident] at which time he went to Thomas and asked him to haul fifty poles he had at Metter to be put down along the line.

It appears that the poles were the property of the Rural Electrification Authority and were on its premises at Metter, that the defendant, Clifton, met Thomas and the claimant, and together, using the crane or winch belonging to the defendant, they loaded the poles on Thomas' two trucks, one of which Thomas drove and the other was driven by the claimant. Having loaded the poles they proceeded some thirty miles to the site of the construction project with Clifton in his own automobile leading the way. Upon arriving at the project Clifton left his automobile, mounted the fender of one of the trucks, and reading from the "stake sheet" from time to time he pointed out the several places where and the type pole he wished unloaded at each particular place, while Thomas and his employees did the actual work of unloading the poles. During these unloading operations a pole fell upon the claimant and he was injured. Other pertinent facts may appear from the opinions that follow.

T. Elton Drake, of Atlanta, for plaintiffs in error.

Booth & Preston, of Statesboro, for defendant in error.

PARKER, Judge.

The controlling question here is whether the relationship between the main defendant and the claimant was that of employer and employee, or whether the claimant was the employee of an independent contractor and not the employee of the defendant. In other words, if Thomas was merely an employee of Clifton, the claimant who was hired by Thomas was likewise an employee of Clifton and entitled to compensation; but if Thomas was an independent contractor the claimant was not the employee of the defendant Clifton and was not entitled to compensation. "Under the Georgia statute, and decisions, the test to be applied in determining whether the relationship of the parties under a contract for the perform ance of labor is that of employer and servant, or that of employer and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract." Yearwood v. Peabody, 45 Ga.App. 451(2), 164 S.E. 901. It appears in this case that the defendant-employer was a contractor engaged in the erection of a rural electric power line, and that he hired the claimant's employer, who was in the business of hauling with trucks for hire, to deliver about 50 poles to the location where the line was being erected, and that the defendant with full knowledge that the claimant had been engaged as a helper, accompanied the claimant's employer and the claimant, who drove the two trucks belonging to the employer, on the delivery of the poles, and rode along the route ahead of them, showing and pointing out to the claimant and to his employer the exact points where the poles were to be put off the trucks, and that the defendant designated which of the poles on the trucks was to be left at each location, and that the defendant was present at all times and directing the work of the claimant and his employer in the manner set out, when the claimant was injured while unloading a pole from a truck at a place designated by the defendant. The...