United States Fid. & Guar. Co v. Stapleton, (No. 18056.)

Decision Date17 January 1928
Docket Number(No. 18056.)
Citation141 S.E. 506,37 Ga.App. 707
CourtGeorgia Court of Appeals
PartiesUNITED STATES FIDELITY & GUARANTY CO. et al. v. STAPLETON et al.

Rehearing Denied Feb. 18, 1928.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Employ 6.]

Error from Superior Court, Richmond County; A. L. Franklin, Judge.

Proceeding under the Workmen's Compensation Act by Mr. and Mrs. W. A. Stapleton, claimants, for the death of John Stapleton, their son, opposed by the Lawrence-Claussen Construction Company, employer, and the United States Fidelity & Guaranty Company, insurer. An award for the claimants was affirmed by the superior court, and the employer and the insurer bring error. Affirmed.

Bryan & Middlebrooks, of Atlanta, for plaintiffs in error.

Peebles & Bowden, of Augusta, for defendants in error.

BELL, J. This case arose under the Workmen's Compensation Act (Laws 1020, p. 167), on the claim of Mr. and Mrs. W. A. Stapleton, for compensation for the death of their son, John Stapleton, directed against Lawrence-Claussen Construction Company, alleged employer, and the United States Fidelity & Guaranty Company, insurer. From an award in favor of the claimants the opposite parties appealed to the superior court, and, the appeal being denied, they excepted. The decedent was killed on July 12, 1026, in the course of his employment and because thereof, by the overturning of a motor truck which he was driving. The contentions of the plaintiffs in error are that the decedent was not an employee of the construction company, but was the servant of another as independent contractor, and also that the award was illegal because this company was not paying to the decedent wages and was not liable for the payment of the same to him. The questions for decision therefore are: (1) Was the decedent an employee of the construction company within the meaning of the Compensation Act? (2) Is the payment, or liability for the payment, of wages to the alleged employee, by the person sought to be held, an absolute prerequisite to an award of compensation against him?

The following is a resume of the evidence adduced before the Industrial Commission, and of facts which were either established without dispute or which could have been inferred:

The construction company had a contract for the construction of a section of a highway, extending from Dean's bridge to Patterson's bridge, in Richmond county, Ga. The cement and sand employed and used in the construction of the highway were hauled from Blythe, Ga., to the point on the highway where the mixer was located. The construction company owned and operated several trucks and hired other trucks for the purpose of hauling the materials. One R. F. Jones, who owned a Ford truck, engaged young Stapleton, the decedent, to drive the same, and thereupon entered into a contract with the construction company to haul the materials from Blythe to the highway mixer at 25 cents per load for the first mile and 10 cents for each additional half mile traveled. The contract was not for any specified time. The truck and driver were both placed at the command of the construction company, although the expense of operating the truck and of keeping it in repair was borne by Jones. He testified that he had nothing to do with the operation of the truck, but that he turned it over to Henney, the foreman of the construction company, and that Staple-ton, the driver, was to get his orders and instructions from Henney and to do what Henney told him. This evidence was corroborated by that of Mr. Claussen, a representative of the construction company, who testified that the orders given to Stapleton were the same as those given to the drivers of the company's trucks; that the trucks were driven under loading bins and loaded with the correct amount, and that the loads were then hauled and dumped into the mixer; and that in so doing the drivers were subject to the orders of the company's foreman. It is further evident, from Mr. Claussen's testimony, that although he could not discharge Staple-ton as the driver of Jones's truck, yet he could discharge him from the particular employment. Stapleton was paid by Jones the same wages that the construction company paid to the drivers whom it employed directly, but received no wages immediately from the construction company. The Industrial Commission found that he was under the control and direction of this company, and that he wasits employee within the meaning of the Compensation Act, and awarded compensation accordingly.

So far as material to this case, section 2b of the Compensation Act (Laws 1920, p. 168) provides:

"Employee shall include every person including a minor in the service of another under any contract of hire or apprenticeship, written or implied."

Under general legal principles, it is well settled that the fact that an employee is the general servant of one employer does not prevent him from becoming the particular servant of another under special circumstances, and it is true, as a general proposition, that when one person lends or hires his servant to another for a particular employment, the servant, as to anything done in such employment, must be dealt with as the servant of the person to whom he is lent or hired, although he remains the general servant of the other person. In actions at common law to recover damages alleged to have been caused by the servant of the defendant, the criterion by which to determine whether the relation existed as alleged is to ascertain whether, at the time of the injury, the alleged servant was subject to the defendant's orders and control and was liable to be discharged by him for disobedience to orders or for misconduct. Brown v. Smith, 86 Ga..277, 12 S. E. 411, 22 Am. St. Rep. 456; Reaves v. Columbus Power Co., 32 Ga. App. 140, 148, 122 S. E. 824; Quinan v. Standard Fuel Co., 25 Ga. App. 47, 102 S. E. 543; Greenberg & Bond Co. v. Yarbrough, 26 Ga. App. 544, 106 S. E. 624. The same rules have been held to be applicable in determining the existence or nonexistence of the relation of employer and employee in cases arising under Compensation Acts. U. S. Fidelity & Guar. Co. v. Corbett, 31 Ga. App. 7, 119 S. E. 921; Zurich, etc., Ins. Co. v. Lee, 36 Ga. App. 248 (1), 136 S. E. 173.

In Scribner's Case, 231 Mass. 132 (1), 120 N. E. 350, 3 A. L. R. 1178, the court held that a driver who, with a team, was let by an ice company to a coal company for the delivery of coal, and who was subject to the orders of the coal company, should, in case of injury while in the yards of the coal company, look to it for compensation under the Workmen's Compensation Act, although he received his wages from the ice company and remained in the general employment of that company, which relied on him to look after its team. In that case the court said that:

The "well-established principle of the common law, which holds that an employee who is lent to a special employer as distinguished from his general employer, and who assents to the change of employment, becomes the servant of the employer to whom he is lent, applies as well to cases arising under the Workmen's Compensation Act as to those at common law."

In Dale v. Saunders Bros., 218 N. Y. 59, 112 N. E. 571, Ann. Cas. 1918B, 703, the New York Court of Appeals said that:

"Where an employer hires the services of his team and employee to another to haul sand, the employee was still working for the original employer when he was loading sand in a pit for the purpose of hauling it, and therefore entitled to compensation from the employer, "

—but in view of the later decision by the same court in De Noyer v. Cavanaugh, 221 N. Y. 273, 116 N. E. 992, it would seem that the ruling just quoted should not be taken as excluding the right to compensation from the special employer where the employee was subject to his orders and control, within the rule above referred to.

In the De Noyer Case the court said:

"Even where no property of the general employer is intrusted to the employee to be used in the special employment, the general employer pays the compensation, may direct the employee when to go to work, and may discharge him for refusal to do the work of the special employer. The Industrial Commission, therefore, has full power to make an award against the general employer. It does not follow that by the application of this rule the special employer is not to be held in any case. The fact that a workman has a general and a special employer is not inconsistent with the relation of employer and employee between both of them and himself. I£ the men are under the exclusive control of the special employer in the performance of work which is a part o£ his business, they are for the time being, his employees. Comerford's Case, 224 Mass. 571, 573, 113 N. E. 460. Thus at one and the same time they are generally the employees of the general employer and specially the employees of the special employer. As they may under the common law of master and servant look to the former for their wages and to the latter for damages for negligent injuries, so under the Workmen's Compensation Law they may, so far as its provisions are applicable, look to the one or to the other, or to both, for compensation for injuries due to occupational hazards [citations], and the Industrial Commission may make such an award as the facts in the particular case may justify."

In Employer's Liab. Assur. Corp. v. Ind. Acc. Comm., 179 Cal. 432, 177 P. 273, the court said:

"While we have heretofore held that an independent contractor is not entitled to compensation under the Workmen's Compensation Law, we find nothing in our decisions which would prevent our following...

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