St. Paul-Mercury Indem. Co. v. Alexander

• Decision Date: 25 May 1951
• Docket Number: 2,PAUL-MERCURY,No. 33476,Nos. 1,33476,s. 1
• Citation: 84 Ga.App. 207,65 S.E.2d 694
• Parties: ST.INDEMNITY CO. et al. v. ALEXANDER et al
• Court: Georgia Court of Appeals

Page 694

65 S.E.2d 694

84 Ga.App. 207

ST. PAUL-MERCURY INDEMNITY CO. et al. v. ALEXANDER et al.

No. 33476.

Court of Appeals of Georgia, Division Nos. 1, 2.

May 25, 1951.

Rehearing Denied June 22, 1951.

Syllabus by the Court.

The finding and award of the State Board of Workmen's Compensation in favor of the claimant was authorized by competent evidence, and the superior court did not err in affirming the award.

Currie & McGhee, Atlanta, for plaintiff in error.

Willingham, Cheney, Hicks & Edwards, Marietta, John S. Alexander, pro se, for defendant in error.

SUTTON, Chief Judge.

John S. Alexander filed with the State Board of Workmen's Compensation a claim for compensation for an accidental injury arising out of and in the course of his employment, against Harris G. Self, who was not insured at the time of the accident, and against W. L. Florence Construction Company and its insurer, the St. Paul-Mercury Indemnity Company. At the first hearing before a director of the Board, neither Alexander nor Self were represented by counsel. They stipulated that Alexander was an employee of Self at the time of the accident, which arose out of and in the course of his employment; that he was thereby temporarily totally disabled; that he was earning $40 per week; and that Self, who was subject to the jurisdiction of the Board and the terms of the act, was a subcontractor under the Florence Construction Company.

On motion of counsel for Self, a second hearing before a deputy director was held, to take additional testimony on the relationship between. Self and Florence Construction Company. The director who held the first hearing later made an award of compensation based on the following finding: 'I therefore find as a matter of fact and conclude as a matter of law that the said John S. Alexander, injured employee, within the meaning and terms of the Workmen's Compensation Act, was an employee of the W. L. Florence Construction Company, principal contractor, as was the said Harris G. Self and all other employees of the said Harris G. Self, admitted subcontractor, and that the said W. L. Florence Construction Company, principal contractor, is liable to the said John S. Alexander for the benefits he is entitled to under the Workmen's Compensation Act.' Accordingly, an award was made in favor of Alexander against the Florence Construction Company and the St. Paul-Mercury Indemnity Company for compensation at the rate of $20 per week for a period not to exceed 350 weeks from June 26, 1950, or until a change in condition or maximum improvement has been reached.

On appeal to the full board, this award was affirmed, and on appeal to the Superior Court of Cobb County, the award of the full board was affirmed. To this judgment, Florence Construction Company and its insurer except.

1. The controversy here is not over the facts, but is as to conclusions or findings based thereon. The question is, was the claimant an employee of the Florence Construction Company within the terms of the Workmen's Compensation Act at the time of his injury? The following facts may be gathered from the evidence before the Board: Florence Construction Company had contracted with the State to construct a part of a new highway in Cobb County, and made a verbal arrangement with Self for him to furnish as many trucks and drivers as were necessary, according to the construction company's determination, to haul sub-grade treatment, or rock and binder, from the places where the construction company's equipment would load the trucks to the places on the grade of the highway under construction where Florence's employees would direct that the rock be dumped. Self owned ten trucks; the claimant and the other drivers of these trucks were hired by Self, who also hired drivers with their own trucks, if and when the Florence Construction Company required him to do so. Self was paid a certain amount for each cubic yard of rock per mile hauled by his own trucks, and Self paid the drivers of his own trucks. Self also turned in the time of those who drove their own trucks, and these drivers were paid directly by the construction company. Self hired the drivers for his trucks and also hired those driving their own trucks, but the evidence indicates that the construction company had the right to require Self to get rid of the drivers if they were not satisfactory or drank liquor on the job. On this point, Ralph Bowen, the engineer in charge of the project for the construction company, testified, 'He [Self] was to furnish what trucks were necessary and he hired his own men and we had no control over them, at least had nothing to do with the hiring and firing as long as they gave satisfaction, not doing anything that would require running them off the job or something like that.' On examination by his counsel, Self testified as follows:

'Q. Did W. L. Florence Construction Company through any of its employees exercise any control over hiring or firing of these drivers? A. He didn't over hiring; he didn't directly over firing. He did tell me that he didn't allow any drinking himself and recommended that I wouldn't have anybody that would drink.

'Q. Well, did you have anybody that drank on the job? A. One time we had an instance, and that was when a ticket man and two of the drivers got to drinking and all three got gone. * * *

'Q. Did Florence tell you or suggest to you that the two drivers be fired? A. He told me that they thought that we could do without them, that we could get along a lot better without them.

Q. Who told you that? A. Harold Jackson.

'Q. The superintendent of the job? A. Yes, sir.'

Self usually drove one of his trucks, and when one of them would break down, he would take it to be repaired. The construction company did not tell the drivers how to operate their trucks, other than to place them for loading and dumping, but the drivers were not supposed to cease operating unless their trucks broke down. The hours when the trucks could haul the rock coincided with the time when Florence Construction Company's employees were working on the loading equipment and on the grade of the highway. The construction company's employees loading the trucks let the drivers know when they would not have time to obtain another load before the lunch period or quitting time daily, and the company's agents told Self whether or not operations would be stopped because of bad weather.

It was ruled in Cooper v. Dixie Construction Co., 45 Ga.App. 420(1), 165 S.E. 152, 'Where, under a contract between an employer and a contractor for the doing of certain work, the employer retains the right to direct or control the time and manner of executing the work to be done thereunder, the relation of master and servant exists, and not the relation of employer and independent contractor.' The test to be applied in determining whether the relationship of the parties 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, and cases therein cited.

We think the Board was authorized to find from the evidence that Self was an employee of the Florence Construction Company, and not an independent contractor, and that the claimant, the driver of one of Self's trucks, was also an...