New Amsterdam Cas. Co. v. Sumrell
| Decision Date | 24 August 1923 |
| Docket Number | 13820. |
| Citation | 118 S.E. 786,30 Ga.App. 682 |
| Parties | NEW AMSTERDAM CASUALTY CO. v. SUMRELL. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
There was sufficient evidence to support the finding of the Industrial Commission that the relation of employer and employee existed between the respondent and the decedent, for whose death compensation was claimed for dependents, under the Georgia Workmen's Compensation Act.
An injury arises "in the course of employment," within the meaning of the Workmen's Compensation Act, when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he is fulfilling those duties or engaged in doing something incidental thereto.
(a) An accident arises "out of" the employment, when it arises because of it, as when the employment is a contributing proximate cause. This and the condition stated above must concur before the act can apply.
(b) If the work of an employee or the performance of an incidental duty involves an exposure to the perils of the highway, the protection of the Compensation Act extends to the employee while he is passing along the highway in the performance of his duties.
(c) But there was no sufficient competent evidence to bring the instant case within the purview of these rulings, though it would be otherwise if the injury and death of the decedent occurred as assumed in the briefs, but not shown by the evidence.
(d) Whether an incorrect assumption by the attorney for the plaintiff in error that a material and necessary fact appears in the record, without more, will amount to a waiver of its absence, it is unnecessary to decide (but see Farmers' Bank v. Avery, 145 Ga. 449, 89 S.E 409), since the judgment is reversed for another reason appearing in the record and stated below.
"If the injured person has not been engaged in the employment of the same employer for the full year immediately preceding the accident, the compensation shall be computed according to the annual earnings which persons of the same class in the same employment and same location (or, if that be impracticable of neighboring employments of the same kind) have earned during such period." Workmen's Compensation Act, § 2, subsec. c, subd. 3 (Laws 1920, p. 167). Hence an award of compensation which is based upon evidence relating solely to the qualifications of the employee as a salesman, his earnings in commissions during a period of less than one month, and the prospect of an increase in his earnings, had he lived, is without sufficient competent evidence to support it. For this reason, irrespective of any other, the judgment of the superior court, affirming the award on the appeal of the insurance carrier, is reversed.
Error from Superior Court, Irwin County; R. Eve, Judge.
Proceeding under the Workmen's Compensation Act by Mrs. J. H Sumrell, for compensation for the death of her husband, J. H. Sumrell, opposed by the Princess Manufacturing Company, employer, and the New Amsterdam Casualty Company, insurance carrier. Compensation was awarded by the Industrial Commission, and the order and decree of the Commission was affirmed by the superior court, and the insurance carrier brings error. Reversed.
Under Workmen's Compensation Act, § 2, subsec. c, subd. 3, where salesman had been employed less than one month, evidence of commissions during that period, and of prospects of increase therein if he had lived, held insufficient to support award for his death.
Madison Richardson, of Atlanta, for plaintiff in error.
Leonard Haas and H. A. Alexander, both of Atlanta, for defendant in error.
Mrs. J. H. Sumrell, alleging Princess Manufacturing Company to be the employer and her husband, J. H. Sumrell, the employee, applied to the Industrial Commission for an award of compensation for herself and her two minor children, as dependents of her husband, who died on September 5, 1921, as a result of injuries received by him three days earlier. An award was granted, and the insurance carrier, New Amsterdam Casualty Company, entered an appeal to the superior court. From a judgment there rendered, affirming the order and decree of the commission, the insurance carrier excepts.
1. It is contended by the plaintiff in error that there was no sufficient competent evidence to authorize the finding of the commission that the decedent was an employee of the Princess Manufacturing Company of Atlanta, Ga., at the time of his death. It is undisputed that some time in August, 1921, under a contract in parol, the decedent began to sell goods for the Princess Manufacturing Company in South Georgia and Florida, for which he was to receive as his sole compensation a commission of 7 1/2 per cent. He had earlier in the same year traveled for the same company in North Carolina, and the conclusion is warranted that the original agreement was extended to include, after some agreed suspension of the service, the contractual relation existing at the time of his death. Direct evidence in regard to the terms and conditions of the contract is very meager and uncertain, and while it is insisted, in reference to the company's control over the services to be performed, that a number of the statements of the sales manager who represented the Princess Manufacturing Company in making the agreement are nothing but conclusions in relation to its effect, it cannot be adjudged, in the state of the record, that the testimony of the witness did not relate to terms and conditions which the parties agreed upon in the formation of their contract. The same is true, also, of some of the evidence of the president.
The decedent traveled in his own automobile and was responsible for all the expenses of his travel. While these facts and also the method of his compensation are to be considered in determining whether the relation of employer and employee existed, they are circumstances only; for the test must lie in a more important matter, namely, the power of control reserved to the proprietor over the conduct of the work which the decedent was to do. Chicago, Rock Island & Pacific Railway Co. v. Bennett, 36 Okl. 358, 128 P. 705, 20 A.L.R. 678 (1). Brown v. Industrial Commission, 174 Cal. 457, 163 P. 664. (4). "The real test by which to determine whether a person is acting as the servant of another is to ascertain whether at the time when the injury was inflicted he was subject to such person's orders and control, and was liable [italics ours] to be discharged by him for disobedience of orders or misconduct." See Brown v. Smith, 86 Ga. 274, 12 S.E. 411, 22 Am.St.Rep. 456; 1 Shearman & Redfield on Negligence (6th Ed.) 160. If the contract reserve to the proprietor the power of appointment and dismissal, and control of the details of the work to be performed, the proprietor becomes an employer and the other an employee. 1 Labatt's Master & Servant, § 18.
In the case at bar it appears that no definite time was fixed for the termination of the relation, whatever it was; but it is inferable that the Princess Manufacturing Company reserved the power to dismiss the decedent for cause at any time; that such dismissal would be accomplished by the withdrawal of the samples belonging to the company and carried by the decedent, from which he made his sales; that the territory in which the decedent would work embraced Florida and South Georgia, with the privilege of including also North Carolina, if the salesman so desired, with any other territory not already assigned to some other salesman of the company; that the company would be kept in touch with his route, and receive his reports from time to time; that he should keep it constantly informed of his whereabouts; that the seller might refuse to accept any orders for goods which he tendered, "had the right to tell him not to sell any more," and fixed the prices and terms for the sales; that he could sell no competitive lines of goods; that the seller might require him to look after collections of accounts without further remuneration; that he was required to give at least three fourths of his time to the work; that his territory was exclusive, unless he failed to produce sufficient business, in which event the seller might send another salesman "right behind him over the same territory." The decedent could have ceased the employment at any time he chose, and while it appears that he was free, with the exception above stated, to go anywhere he pleased, he was required to call upon the customers personally every 60 days. These inferences we think are warranted by the evidence adduced, and in our opinion the commission was authorized to find that the relation of employer and employee existed.
If it be true, as contended by the plaintiff in error, that the witnesses from whose testimony we have deduced the above were testifying only from conjectures in regard to the power reserved to the company over the details of the work which the decedent was to perform, this, as suggested above, does not affirmatively appear from the record. "Where a witness testifies to a fact, the presumption is, in the absence of anything to the contrary, that he is testifying from his own knowledge." Shaw v. Jones, 133 Ga. 446 (3), 66 S.C. 240. The findings of the commission on questions of fact, if supported by any evidence, are conclusive. See section 59 of the Workmen's Compensation Act (Ga. L. 1920, p. 198).
2. It is stated in the brief of the attorney for the plaintiff in error that:
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...Ga. App. 585, 402 S.E.2d 536 (1991); McElreath v. McElreath, 155 Ga. App. 826, 273 S.E.2d 205 (1980); New Amsterdam Cas. Co. v. Sumrell, 30 Ga. App. 682, 118 S.E. 786 (1923). 67. Stevens, 278 Ga. at 167, 598 S.E.2d at 458. 68. Id. 69. 246 Ga. 553, 272 S.E.2d 288 (1980). 70. Stevens, 278 Ga.......