Overton-green Drive-it-yourself System Inc v. Cook, 28831.

• Decision Date: 11 July 1941
• Docket Number: No. 28831.,28831.
• Citation: 16 S.E.2d 50
• Parties: OVERTON-GREEN DRIVE-IT-YOURSELF SYSTEM, Inc. v. COOK et al.
• Court: Georgia Court of Appeals

16 S.E.2d 50

OVERTON-GREEN DRIVE-IT-YOURSELF SYSTEM, Inc.

v.COOK et al.

No. 28831.

Court of Appeals of Georgia,

Division No. 1.

July 11, 1941.

Syllabus by the Court.

The evidence supports the award of the Industrial Board and the judge of the superior court did not err in affirming the award.

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Proceeding under the Workmen's Compensation Act by Mrs. Rosa Lee Cook, claimant, in behalf of herself and her minor children, for the death of Andrew Eugene Cook, employee, opposed by the Overton-Green Drive-It-Yourself System, Incorporated, employer. To review a judgment affirming a judgment granting compensation, the employer brings error.

Affirmed.

Lee, Congdon & Fulcher, of Augusta, for plaintiff in error.

C. Wesley Killebrew, of Augusta, for defendants in error.

BROYLES, Chief Judge.

In behalf of herself and her two minor children, Mrs. Rosa Lee Cook instituted a proceeding before the Industrial Board against Overton-Green Drive-It-Yourself System, Inc. (hereinafter referred to as "Overton-Green") to recover compensation for the homicide of Andrew Eugene Cook, the husband and father respectively of Mrs. Cook and said children. Thesingle director awarded Mrs. Cook, for the benefit of herself and her two children, compensation at the rate of $1.55 per week for a period of three hundred weeks from and including December 26, 1939, the date of the accident, and 45½ cents a week for the same period of time as a penalty for noncompliance with the requirement of Code, § 114-602, that an employer operating under the workmen's compensation act shall fully insure his liability thereunder. The director also ordered the employer to pay $200 as a reasonable attorney's fee to claimant's counsel, and to pay any reasonable medical and hospital expenses, and burial expenses not exceeding $100. The Industrial Board affirmed the award; the judge of the superior court affirmed the finding of the Industrial Board; and Overton-Green excepted to the court's judgment.

Counsel for plaintiff in error contend that "the deceased * * * was an employee of the Safety Cab Company * * *, and that while that organization was owned and controlled by Overton-Green * * *, it was an entirely separate and distinct business, and that Overton-Green did not have ten or more employees engaged in this separate and distinct business of Safety Cab Company, and that, therefore, the workmen's compensation law does not apply, and the Industrial Board has no jurisdiction in the premises." Counsel further contend that their client was not liable for penalties or attorney's fees. The attorneys for plaintiff in error admitted that Overton-Green owned Safety Cab Company, but insisted that Safety Cab Company was merely a trade-name under which Overton-Green conducted a taxi-cab business that was entirely separate and distinct from the business operated by Overton-Green; admitted that deceased was an employee of Safety Cab Company, but denied that he was an employee of Overton-Green; admitted that said minors were born, respectively, June 16, 1931, and February 3, 1937, and were the issue of a lawful marriage between Rosa Lee Cook and deceased; and admitted that the accident arose out of and in the course of the deceased's employment.

The evidence discloses the following facts: Overton-Green was a corporation operating a taxicab business in the City of Augusta, Georgia. Safety Cab Company was not incorporated, and was the trade-name under which Herbert Ulmer formerly operated a similar business in said city. Ulmer went into bankruptcy and his business was sold to Fred Melton, an employee of Overton-Green, who, in January, 1939, sold Safety Cab Company to Overton-Green in consideration of the settlement of a debt that he owed that corporation. At the time of the accident deceased was driving a Safety cab, and was earning $10.71 per week. After Overton-Green purchased Safety Cab Company, it continued to operate the cabs formerly operated by it with the sign "Taxi, Phone 326" painted on their sides; and operated the Safety cabs with "Safety Cab, Phone 2686" painted on their sides. On December 26, 1939, four Overton-Green cabs and three Safety cabs were being operated. There was a night and day shift for all cabs, and, consequently, eight drivers of Overton-Green cabs, and six drivers of Safety cabs. There were also two telephone operators, one working during the day, and one at night, and, while Overton-Green and Safety Cab Company had separate telephones and telephone numbers, these operators had a "desk-chair switchboard" and answered calls for both Overton-Green and Safety Cab Company. These operators and the president of Overton-Green each had the right to hire, discharge and direct the drivers for the Safety Cab Company. The drivers of the Safety cabs were at times given written notice transfering them to the Overton-Green cabs. Safety cabs were returned for taxes by Overton-Green, and all the cabs operated as Safety cabs and all the Overton-Green cabs were insured in a policy issued to Overton-Green. The president of Overton-Green operated a garage at which both the Overton-Green and the Safety cabs were washed and repaired. F. H. Gustafson testified that he was employed by Overton-Green and drove a Safety cab at first, but that Fred Melton, who was in charge of all the cabs of Overton-Green and Safety Cab Company, transferred him to an Overton-Green cab. Mr. Green, president of Overton-Green, testified that he owned the majority of the stock of that corporation; and the attorney for Overton-Green admitted that "neither the Safety Cab Company nor Overton-Green has filed any policy of insurance or otherwise qualified with the ...