Sears, Roebuck & Co. v. Poole

• Decision Date: 22 October 1965
• Docket Number: No. 41583,No. 3,41583,3
• Citation: 145 S.E.2d 615,112 Ga.App. 527
• Parties: SEARS, ROEBUCK & COMPANY v. Mildred B. POOLE
• Court: Georgia Court of Appeals

Page 615

145 S.E.2d 615

112 Ga.App. 527

SEARS, ROEBUCK & COMPANY v. Mildred B. POOLE.

No. 41583.

Court of Appeals of Georgia, Division No. 3.

Oct. 22, 1965.

Nall, Miller, Cadenhead & Dennis, A. Paul Cadenhead, Thomas A. Rice, Atlanta, for plaintiff in error.

Alford Wall, Atlanta, for defendant in error.

Syllabus Opinion by the Court

HALL, Judge.

In this case an employer assigns error on a judgment of the superior court affirming an award of the State Board of Workmen's Compensation granting compensation to the widow of a deceased employee. Held:

1. The test to be applied in determining whether an employed workman is a 'person in the service of another under any contract of hire,' within the meaning of Code Ann. § 114-101, is whether the contract of employment between him and the employer gave, or the employer assumed, 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 with the contract. American Auto Ins. Co. v. Tanner, 97 Ga.App. 122, 123, 101 S.E.2d 875; Banks v. Ellijay Lumber Co., 59 Ga.App. 270, 200 S.E. 480; Fidelity & Cas. Co. of N. Y. v. Windham, 209 Ga. 592, 593, 74 S.E.2d 835. The determination is often difficult and the line of demarcation close. Glens Falls Indem. Co. v. Clark, 75 Ga.App. 453, 459, 43 S.E.2d 752; Bituminous Cas. Corp. v. Wilkes, 77 Ga.App. 764, 766, 49 S.E.2d 916; see 1 Larson, Workmen's Compensation Law 672, § 45.31(b).

In this case there was evidence that the employer's display manager, who was in charge of remodeling work in a store and had the duty to coordinate the work of the various crafts, procured the deceased and other electricians through a union office, and had the authority to discharge them if not satisfied with their work. The electricians were under the supervision of the display manager and were paid at the rate of $5.50 per hour for the actual number of hours they worked. The deceased worked under this arrangement and used material furnished by the employer when the employer had it available, and when the employer did not have needed material it was furnished by the deceased. The deceased submitted weekly bills on forms furnished by the employer for the hours he worked and the materials he had furnished. Prior to his fatal heart attack the deceased had been working in the maintenance department and was directed by the display manager to help another electrician hang some fluorescent light fixtures at another place in the store. This evidence authorized the board's finding that the deceased was an employee under the provisions of the Workmen's Compensation Act. Bituminous Cas. Corp. v. Wilkes, 77 Ga.App. 764, 49 S.E.2d 916, supra; Old Republic Ins. Co. v. Pruitt, 95 Ga.App. 235, 97 S.E.2d 521; American Auto Ins. Co. v. Tanner, 97 Ga.App. 122, 101 S.E.2d 875, supra; Liberty Lumber Co. v. Silas, 49 Ga.App. 262, 175 S.E. 265; Continental Gas Co. v. Haynie, 51 Ga.App. 650, 653, 181 S.E. 126; Cash v. American Surety Co., 101 Ga.App. 379, 114 S.E.2d 57; Travelers Ins. Co. v. Moates, 102 Ga.App. 778, 117 S.E.2d 924.

2. In 1963 the legislature amended Code § 114-102 to provide that the terms 'injury' and 'personal injury' shall not include 'heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, or thrombosis, unless it is shown by...