Opinion
36952.
DECIDED JANUARY 21, 1958. REHEARING DENIED FEBRUARY 5, 1958.
Workmen's compensation. Clayton Superior Court. Before Judge Reynolds. October 5, 1957.
John M. Williams, for plaintiffs in error.
Alfred Wall, Wall Maddox, contra.
The claimant's husband having died as the result of an injury arising out of and in the course of his employment, the judge of the superior court was correct in affirming the award of the Workmen's Compensation Board.
DECIDED JANUARY 21, 1958, — REHEARING DENIED FEBRUARY 5, 1958.
Mrs. James C. Tanner filed a claim for compensation benefits resulting from the death of her husband caused by an electrical shock which he received while installing kitchen cabinets, against Paramount Homes, Inc., and its insurance carrier, American Automobile Insurance Company.
On the hearing before a deputy director the evidence disclosed: that the deceased was employed as head of the cabinet shop for the Dan Carmichael Manufacturing Company and during his off time was installing cabinets made in the shop for the defendant; the defendant was purchasing these cabinets from the Carmichael Company prior to the time the deceased began installing them for the defendant; the order blanks contained the specifications for the cabinets and house where they were to be delivered and the desired time of delivery; Jack Calloway, secretary-treasurer of the defendant, Paramount Homes, Inc., testified in part: he and the deceased contracted for the deceased to install some cabinets in several houses for $15 per house; the order blanks specified specifications, time and place of delivery; if he had a job he needed in a hurry he would put "rush" on the order blank; when he had a "backlog" of orders he would inform the deceased which of the houses to put the cabinets in next; he told the deceased which houses to install the cabinets in to enable him to meet his schedule; he did not ask the deceased to change a cabinet top; he would have asked the deceased to change the top of a cabinet to another color if a customer had wanted the change; that he would have charged for this change in the cabinet; he would also have asked the deceased to change the type of hinges on the cabinets if a customer had wanted them changed; he did not remember the deceased having to make any changes in the cabinets; the order blank system was the same prior to and after the deceased began putting in the cabinets; he never told the deceased what time of the day or week for him to work; he notified the deceased where to install the cabinets by the invoices.
The claimant testified as to her marital status and dependency.
Bill Gaston testified in part that: he worked for the deceased; he aided the deceased in installing the cabinets; he worked in the afternoons and on Saturdays; he did not work regularly; he only worked for the deceased when he could get off from his regular job; on one occasion someone from the defendant's office led them to the house where they were to install the cabinets; no one came around where they were working to give them instructions; they had to change one cabinet top because it was the wrong color; no one except the deceased told him when to work.
Upon the conclusion of the hearing the deputy director found that the deceased was an independent contractor and did not come within the provisions of the Workmen's Compensation Act. The claimant appealed to the full board, which reversed the award of the deputy director, and found that the deceased was an employee of the defendant, and died as the result of an injury arising out of and in the course of his employment. The defendant and its insurance carrier appealed to the superior court. The judge of the superior court affirmed the full board, and it is to this ruling that defendant excepts.
1. The defendant and its insurance carrier insist that the deceased was an independent contractor and did not come within the provisions of the Workmen's Compensation Act. The test to be applied in determining the status of the deceased is whether the contract of employment between him and the defendant gave, or the defendant assumed, the right to control the time, manner, and method of executing the installation of the cabinets. Yearwood v. Peabody, 45 Ga. App. 451 (2) ( 164 S.E. 901); Davison-Paxon Co. v. Ferguson, 94 Ga. App. 501 ( 95 S.E.2d 306); Lokey Simpson v. Hightower, 57 Ga. App. 577 ( 196 S.E. 210).
In the present case the evidence disclosed that the deceased received order blanks which gave instructions as to the installation, time and place of delivery of the cabinets. While it is true that these order blanks were sent to the deceased in his capacity as shop foreman for Dan Carmichael Manufacturing Company, they also served the dual purpose of informing the deceased as to these instructions. This left little else to be ascertained as to the installing of the cabinets. Jack Calloway, secretary-treasurer of the defendant corporation, in discussing the order blank testified: "if there was a rush job I needed in a hurry I'd put `rush'." This was clearly an instruction as to the manner in which the installation was to be done. He also testified that, if a customer had wanted changes made in the cabinets, he would have asked the deceased to change the cabinets to comply with the customer's request. It is clear from the evidence that the witness not only exercised control over the activities of the deceased, but that he construed the contract of employment as giving authority to further control the deceased's activities if he had so desired.
It is of no consequence that the witness did not exercise this right to control the time and manner of the contract performance. Old Republic Ins. Co. v. Pruitt, 95 Ga. App. 235 ( 97 S.E.2d 521); Davis v. Starrett Bros., Inc., 39 Ga. App. 422, 427 ( 147 S.E. 530); Home Accident Ins. Co. v. Daniels, 42 Ga. App. 648 ( 157 S.E. 245); St. Paul-Mercury Indem. Co. v. Alexander, 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, supra, this is not necessary for him to be classified as an employee.
The evidence being sufficient to present a question of fact, as to whether the deceased was an employee or independent contractor, this court will not disturb the award of the Workmen's Compensation Board.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.