Simpson v. Hightower

Citation57 Ga.App. 577,196 S.E. 210
Decision Date18 March 1938
Docket NumberNo. 26593.,26593.
CourtUnited States Court of Appeals (Georgia)
PartiesLOKEY & SIMPSON . v. HIGHTOWER.

Syllabus by the Court.

The evidence amply supports the finding of the director of the Department of Industrial Relations that the claimant was an employee of Lokey & Simpson and not an independent contractor. It being agreed by counsel for both parties that this was the only question that need be decided in determining whether the evidence was sufficient to authorize the award of compensation to the claimant, it follows that the judge of the superior court did not err, upon appeal, in refusing to set aside the award.

BROYLES, C. J., dissenting.

Error from Superior Court, McDuffie County; C. J. Perryman, Judge.

Proceeding under the Workmen's Compensation Act by Willie Hightower, claimant, opposed by Lokey & Simpson, employer. To review a judgment of the superior court which affirmed an award of the Industrial Commission in claimant's favor, employer brings error.

Affirmed.

T. Reuben Burnside, of Thomson, for plaintiff in error.

Randall Evans, Jr., of Thomson,-for defendant in error.

GUERRY, Judge.

The Department of Industrial Relations has awarded compensation to Willie High-tower, against Lokey & Simpson, as employer. The defendant excepts to the judgment of the judge of the superior court on appeal affirming the award made by the department. Counsel for both parties agree that the only question for decision is whether the evidence introduced authorized the finding that the claimant was an employee of the defendant. The defendant contends that the claimant was not an employee but an independent con-tractor, and that the evidence authorized no other finding.

It appears from the evidence that Lokey & Simpson, a partnership, composed of Leonard Lokey and E. M. Simpson, was engaged in the sawmill business. The claimant was employed by the defendant as a servant, but shortly before his injury he had a misunderstanding with Lokey and was discharged. Several days later, Simpson contracted with him to cut trees down on a certain tract of land, his compensation to be so much per thousand feet. Simpson, on behalf of the defendant, testified: "I made a trade with Willie High-tower to cut a certain tract of timber out on the Gun place at so much a thousand feet and he employ his own help. * * * Willie made a contract with me and I can tell you the proposition I made. I said I would give him forty cents a thousand if he used certain tools we had, but I would give him fifty cents a thousand and we have nothing to do with it and let him go ahead and cut the timber. He was to cut the timber into standard lengths for the roofing business, everybody knows what that is. The two standard lengths are 12 and 16 feet. * * * We didn't specify the lengths, in this country where the roofing and box business prevail we don't go into that. * * * The way he was working, he didn't go to work when our crowd went to work. He went to work anytime during the day he wanted to, and one day he was not out there at all. He hired another man to work in his place that day. We were only on that job about four days. Two men on a crosscut saw did the cutting, Willie and the man he hired. I knew nothing about the man he hired. Of course, he had to have a helper. There was no specified height above the ground for him to saw the timber in that kind of work. He couldn't cut it as high as you indicate. They were to cut it anywhere from 18 inches to two feet above the ground; or, if the tree was bad and leaning, it would necessitate him to cut it higher than that and we had no objections to that. If the tree was straight he was to cut it with the least possible waste unless it endangered the saw or the men. He was to use his own judgment about the height to cut the tree. He was supposed to know how to cut timber. He was a log cutter, and he knew about this kind of cutting and we didn't advise him about it one way or the other. * * * We were in the sawmill business and wanted some timber cut and contracted with Willie Hightower to cut the body of timber and agreed to pay him 50 cents a thousand feet if he used his own tools. We didn't have anything to do with whom he employed. We didn't have anything at all to do with the hours he worked. We didn't supervise the work. He did not go to work with our hands, he went to work with his own men. He did not use the same hours our men used. He worked when he pleased and quit when he pleased. You see, it is customary with log cutters, they don't work as many hours anyway as the mill hands work. They will go in early in the morning and cut before we start up and in the heat of the day they will leave and be gone for several hours." The claimant testified in part: "My business was to cut trees in the woods. I had a contract to do that. I didn't hire anybody to help. I had somebody helping me. I was to get so much a thousand for cutting the logs and didn't hire anybody to help me. * * * Aleck Taylor was helping me. Mr. Simpson paid him his part and paid me mine. He was cutting like I was. He got 20 cents a thousand and I go.t 20 cents a thousand. Mr. Simpson came out in the woods and showed us where to cut, the trees he wanted us to cut, but he didn't show us how they were to be cut or anything like that, he wasn't overseeing us. We cut the trees as we wanted to cut them, he told us to cut in 10, 12, 16 and 22. We didn't furnish our own tools and did not rent them from Mr. Simpson, they was already his and he give them to me to cut with."

In Durham Land Co. v. Kilgore, 56 Ga. App. 785, 786, 194 S.E. 49, 50, it was said: "If the employer has or assumes the right under the contract to control and direct how the work shall be done, that is to say, that the employee has or assumes the right under the contract to control the manner in which the details of the work are to be executed, as distinguished from the mere right to superintend it so that the desired results are obtained, the relationship is that of master and servant. If, on the other hand, the employer has or assumes only the right under the contract to superintend the work to the end that the desired results so contracted for are obtained, and does not have or assume the right under the contract to controlthe manner in which it is done, which right is vested in the contractor, the relationship is that of employer and independent contractor. Thus it has been said that where a contract is entered into providing for the execution of a specific kind or piece of work, for a stated compensation, 'the test to be applied in determining whether the relationship of the parties under' the 'contract for the performance 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. See, also, Bentley v. Jones, 48 Ga.App. 587, 173 S.E. 737, and cit."

Settling all conflicts in the evidence in favor of the claimant, as the director has done, it would appear that the defendant employed the claimant, together with another, to fell trees on a certain tract of land, and to saw them into stated lengths; that his compensation was to be so much per thousand feet of the trees sawed; that the defendant pointed out the trees to...

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7 cases
  • Harris v. City of Chattanooga, Tenn.
    • United States
    • U.S. District Court — Northern District of Georgia
    • 16 Diciembre 1980
    ...the dimensions the lumber was to be sawed." The employee, however, was an independent contractor. Finally, in Lokey & Simpson v. Hightower, 57 Ga.App. 577, 196 S.E. 210 (1938), the employer directed which trees were to be cut, and in what length. No other evidence of control was offered. Ye......
  • Malcom v. Sudderth
    • United States
    • United States Court of Appeals (Georgia)
    • 20 Noviembre 1958
    ...Workmen's Compensation § 104; Industrial Commission of Colorado v. Hammond, 77 Colo. 414, 236 P. 1006. In Lokey & Simpson v. Hightower, 57 Ga.App. 577, 580, 581, 196 S.E. 210, 212 it is held: 'In the present case, about the only thing that we find left to the discretion of the claimant was ......
  • Barbree v. Shelby Mut. Ins. Co., 39158
    • United States
    • United States Court of Appeals (Georgia)
    • 9 Enero 1962
    ...S.E.2d 924. It is not necessary for the claimant to work regular hours in order to be classified as an employee. Lokey & Simpson v. Hightower, 57 Ga.App. 577, 196 S.E. 210. In the instant case there was evidence which would have authorized, though it did not demand, the finding that the def......
  • Cash v. American Sur. Co., 38209
    • United States
    • United States Court of Appeals (Georgia)
    • 18 Marzo 1960
    ...84 Ga.App. 207, 210, 65 S.E.2d 694. While the deceased did not work regular hours, under authority of Lokey & Simpson v. Hightower, 57 Ga.App. 577, 196 S.E. 210, supra, this is not necessary for him to be classified as an employee.' American Automobile Ins. Co. v. Tanner, 97 Ga.App. 122, 10......
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