Swift & Co. v. Alston

• Decision Date: 27 February 1934
• Docket Number: 23214.
• Citation: 173 S.E. 741,48 Ga.App. 649
• Parties: SWIFT & CO. v. ALSTON.
• Court: Georgia Court of Appeals

173 S.E. 741

48 Ga.App. 649

SWIFT & CO. v. ALSTON.

No. 23214.

Court of Appeals of Georgia, First Division

February 27, 1934

Syllabus by the Court.

The finding of the Department of Industrial Relations awarding compensation to the widow of Robert Alston was amply supported by the evidence; therefore the judge of the superior court did not err in denying the appeal therefrom.

Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.

Proceeding under the Workmen's Compensation Act by Lena Alston claimant, for the death of her husband, Robert Alston opposed by Swift & Co., the alleged employer. To review a judgment of the superior court denying an appeal from an award of the Department of Industrial Relations in favor of claimant, the alleged employer brings error.

Affirmed.

Smith Smith & Bloodworth, of Atlanta, for plaintiff in error.

Spradlin & Whiddon and F. L. Breen, all of Atlanta, for defendant in error.

MACINTYRE Judge.

There is presented by the record in this case only one major question for decision. The widow of Alston made application to the Department of Industrial Relations for compensation under the Workmen's Compensation Act (Laws 1920, p. 167 as amended), for his death, alleging that at the time of the injury, which resulted in death, he was in the employ of Swift & Co. This position was opposed by Swift & Co.; they contending that he was not in any way employed by them, but was an employee of one Oliver, who was an independent contractor. The record presents substantially the following facts: Swift & Co. purchased coal necessary for the running of its factory, in carload lots. The cars were delivered on side tracks to its plant at different times, according to the demands of its business and as orders were placed. Oliver was employed through oral agreement by M. C. Dorch, superintendent of the refinery of defendant, to unload the cars as they arrived; his compensation being computed on the basis of each ton unloaded. He was directed where the car was to be stationed and where the coal was to be placed when unloaded. The actual terms of the agreement are meager, the above being the substance of its purport. There was testimony by the officers of the defendant company that Oliver was in no way directed or controlled as to the means, manner or time of doing his work. It does not appear that he was required to work at any specific hours, but only upon the arrival of a car he would come and unload it. Alston, the deceased, was employed, paid, and controlled by Oliver to help him unload the cars. It appears from the evidence, that the hiring by Oliver of others to help him unload the cars was not objected to by the defendant company, but, on the other hand, such practice was acquiesced in; they at the same time exercising no authority or control over Alston. This we deem sufficient to give a general view of the transaction under investigation, as in the view we have taken of the case, it is not necessary to go into the evidence in detail.

After a careful consideration of the facts presented, they indicate to our minds that Oliver from the nature of his work and the surrounding circumstances, was a servant and not an independent contractor of the defendant company. Our courts have generally laid down the test, in determining whether one is a servant or independent contractor, to be the lack of the right in the employer to control the manner, means, and time of doing of the work, as distinguished from the right merely to control the result to be obtained by the work. See, in this connection, Yearwood v. Peabody, 45 Ga.App. 451, 164 S.E. 901, and cases there cited. See, also, Bentley v. Jones (Ga.App.) 173 S.E. 737, decided Feb. 24, 1934. There is nothing in the present record showing any provisions of the contract retaining in the defendant company any right to control the manner, means, and time of doing the details of the work; and there is testimony of officers of the company that no such control was exercised. The question to be decided in all cases of this character is: Had the defendant the right, under the agreement, to control the employee in the means, manner, and time of doing the details of the work, as distinguished from the mere right to control the result to be obtained by the work, or did the defendant assume such control over the means, manner, and time of doing the work as to change the relation from employer and independent contractor to that of master and servant? The defendant bases its contention that Oliver was an independent contractor on the facts (1) that he was paid by the ton for his work; (2) that he was at liberty to hire and did hire others to aid in the performance of his work, over which he had control; and (3) the evidence of the various officers of the defendant company that they did not give Oliver any direction, or exercise any control over him, as to how he unloaded the coal from the cars. We are, however, of the opinion that none of these facts, either separately or collectively, under the circumstances of the nature of his work, are antagonistic to the finding of the Department of Industrial Relations.

It is true that courts have in some cases treated the mode of payment as a circumstance to be considered in determining the character of the relation, but, in so far as our diligence has found, that is by no means decisive of this question, nor is it in any way inconsistent with the idea of that relation being one of master and servant. Further, we do not think the fact that Oliver hired other employees in the performance of his work is decisive in showing the relation to be that of an employer and independent contractor, rather than of master and servant. See, in this connection, Bentley v. Jones, supra. The testimony of the officers of the defendant company that they at no time directed, controlled, or assumed any control over Oliver in the means, manner, and time of doing his work is itself only circumstantial evidence to be considered as to whether the company had the right to so control the work, for the test is not whether the defendant did in fact control and direct independent contractor in his work, but is whether it had the right, under the employment, taking into consideration the circumstances and situation of the parties, and the work, to so control and direct him in his work.

We are of the opinion that the evidence amply authorized the finding that Oliver was subject to the control of Swift & Co. as to the manner, means, and time of doing the details of...