Slater v. Canal Wood Corp. of Augusta, s. 71639

• Decision Date: 22 April 1986
• Docket Number: Nos. 71639,71640,s. 71639
• Citation: 178 Ga.App. 877,345 S.E.2d 71
• Parties: SLATER v. CANAL WOOD CORPORATION OF AUGUSTA. JACKSON v. CANAL WOOD CORPORATION OF AUGUSTA.
• Court: Georgia Court of Appeals

Page 71

345 S.E.2d 71

178 Ga.App. 877

SLATER v. CANAL WOOD CORPORATION OF AUGUSTA.

JACKSON v. CANAL WOOD CORPORATION OF AUGUSTA.

Nos. 71639, 71640.

Court of Appeals of Georgia.

April 22, 1986.

Rehearings Denied May 2, 1986 and May 9, 1986.

Certiorari Denied July 16, 1986.

Dwight T. Feemster, Robert J. Duffy, Savannah, for appellant in No. 71639.

Charles W. Brannon, Jr., Savannah, for appellant in No. 71640.

Wiley A. Wasden III, James M. Thomas, Savannah, for appellee.

POPE, Judge.

Plaintiff Deborah Ann Slater, individually and as administratrix of the estate of her deceased father, James Horace Slater, brought this wrongful death action against defendants James Earl Jackson and Canal Wood Corporation of Augusta d/b/a Southland Timber Company. James Slater was killed as the result of a collision between his vehicle and a log truck owned and operated by defendant Jackson. At the time of the collision Jackson was hauling logs pursuant to a written "cut and haul" contract with Canal Wood. Plaintiff asserts that Jackson's negligence caused her father's death and bases her claim against Canal Wood on two theories of liability: (1) the doctrine of respondeat superior, alleging a master/servant relationship between Canal Wood and Jackson; and (2) Canal Wood's negligent hiring of Jackson, alleging that Canal Wood knew or should have known of Jackson's alleged incompetence to operate a large, heavily loaded vehicle upon the public highways. Both defendants denied any liability, and following discovery Canal Wood moved for summary judgment, countering plaintiff's assertions of liability by presenting evidence showing that its relationship with Jackson was one of employer/independent contractor and also showing that it had no knowledge of Jackson's purported "incompetence." These appeals arise from the trial court's grant of Canal Wood's summary judgment motion.

1. RESPONDEAT SUPERIOR. "Under OCGA § 51-2-4, '(a)n employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.' The chief test to be applied in determining whether a person is employed as a servant or as an independent contractor has long been and continues to be whether the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished from the right merely to require certain definite results in conformity with the contract. [Cits.] ... With regard to the 'independent business' requirement set forth in the code section, the test is essentially whether the contractor has a bon[a] fide existence apart from the employer or functions instead as the employer's alter ego." Bowman v. C.L. McCord, etc., Inc., 174 Ga.App. 914, 915, 331 S.E.2d 882 (1985). The Restatement, Second, Torts § 414 states the rule thusly: "One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care." See OCGA § 51-2-5(5). Although the relationship between an alleged master and servant is generally a question of fact to be decided by a jury, there are cases presenting factual situations wherein this issue has been decided as a matter of law. Lawson Prods. v. Rousey, 132 Ga.App. 726(1), 209 S.E.2d 125 (1974).

Canal Wood is a "broker"; i.e., it purchases timber from various sellers for resale to wood processors, contracting with various independent producers such as Jackson to cut, haul and deliver the timber. In support of its motion for summary judgment Canal Wood relied upon paragraph 11 of its contract with Jackson in effect at the time of the subject collision which provided: "It is understood and agreed as follows: that Contractor [Jackson] is an independent forest products Contractor and Owner [Canal Wood] exercises no control [of] Contractor's operations; that Owner does not supervise Contractor's methods and manner of work and has no authority to hire or fire any of Contractor's employees; that Contractor is not Owner's agent, not its employer, and Contractor is without authority to do any act in Owner's name; that Contractor will produce, load, transport and deliver all forest products covered by this agreement in full compliance with the Federal Occupational Safety and Health Act (OSHA) of 1970, as amended, the Federal Fair Labor Standards Act of 1938, as amended, and all other applicable State and Federal laws." This language is essentially repeated in the "wood settlement sheet" executed by Jackson upon payment for services rendered pursuant to the contract during the week of the collision. Language of similar import is also contained in two additional agreements whereby Jackson purchased workers' compensation and general liability insurance from Canal Wood.

By affidavit Canal Wood's area manager averred that Canal Wood does not control the hours which loggers must work to complete the contract; that it does not control what equipment the loggers must use to perform the contract nor the maintenance of that equipment; that it does not control the number of workers the loggers must use to complete the contract, nor does it control the manner of compensation of said workers; that it does not control the manner in which the loggers cut the trees and load them on trucks for transportation; that it does not control how the loggers operate their trucks; and that its only connection with the performance of a cut and haul contract is to make sure that the work is being performed according to the terms of the contract. Also by affidavit the president of Canal Wood testified that at all times pertinent to this case Jackson was an independent contractor; that the corporation did not train, supervise, restrict or otherwise exercise any control whatsoever over the manner and means by which Jackson went about producing wood pursuant to the contract; and that the rights and obligations of Jackson and Canal Wood are fully set forth in the contract and wood settlement sheet.

By the foregoing evidence Canal Wood successfully pierced the allegations in the complaint of liability under the doctrine of respondeat superior, and plaintiff was thus required to respond by setting forth a specific fact or facts showing a genuine issue for trial. Withrow Timber Co. v. Blackburn, 244 Ga. 549, 261 S.E.2d 361 (1979). As noted in Withrow Timber, if the other fact is direct evidence, that is sufficient to allow the case to go to the jury; if the other fact is circumstantial evidence, it must be inconsistent with the defendant's evidence, or if consistent, it must demand a finding on fact or the issue in favor of the plaintiff.

In opposition to Canal Wood's motion for summary judgment, plaintiff cites to a considerable number of circumstances of record which, she asserts, tend...