Summary
finding that although claimant used his own tools, hired his own workers, set his own schedule, and was unsupervised, he was an employee, because the employer had the right to control him as derived from an hourly wage by checking up on how time was spent or by terminating his employment at any time
Summary of this case from Lesniewski v. W.B. Furze Corp.Opinion
32152.
DECIDED OCTOBER 14, 1948.
Appeal; from Tattnall Superior Court — Judge Price. June 4, 1948.
D. S. Cowart, T. Elton Drake, for plaintiffs in error.
John P. Rabun, contra.
The evidence authorizes the finding of the hearing director that the relationship of the claimant to the Board of Commissioners of Roads and Revenues of Tattnall County was that of an employee under the provisions of the Workmen's Compensation Act at the time he sustained injuries arising out of and in the course of his employment, and, inasmuch as this award was affirmed by the full board on appeal, the superior court did not err in affirming the award of the State Board of Workmen's Compensation.
DECIDED OCTOBER 14, 1948.
Thomas Harry Wilkes filed a claim for compensation with the State Board of Workmen's Compensation against the Board of Commissioners of Roads and Revenues of Tattnall County, and its insurance carrier, Bituminous Casualty Corporation, on account of injuries sustained by him on July 18, 1947, which he claimed arose out of and in the course of his employment while dismantling a bridge for the said commissioners.
The only feature of the case in issue before this court is whether or not the evidence supports the finding by the hearing director that the claimant was an employee of the Board of Commissioners of Roads and Revenues of Tattnall County, and not an independent contractor, at the time he sustained the injuries. The evidence on the hearing with reference to this phase of the case was substantially as follows: The claimant, Thomas Harry Wilkes, is a farmer, 36 years old, and had had experience in construction work. The commissioners were desirous of securing the services of someone to dismantle an abandoned bridge known as Ryals bridge, and decided to secure the services of the claimant because of his experience and because he had an acetylene torch which could be used to cut the steel of the bridge. An oral agreement was reached between the claimant and the commissioners around July 1, 1947, whereby he could dismantle the bridge, receiving $1.50 per hour for his work, and, as the commissioners had no help available, he was to secure additional help as needed, and the commissioners would reimburse him for this help at the rate of $.50 per hour per helper. The claimant was to furnish any equipment needed for the work. The commissioners requested him to cut and remove the steel stringers in the bridge in such a manner as to leave them usable in bridge construction or repair work. It was left to the claimant to decide when and what number of hours he and his helpers would work. In accordance with this agreement, the claimant began dismantling the bridge, and while so engaged, on July 18, 1947, received injuries to his right arm. For work prior to the accident the claimant billed the county for 39 hours of his own labor at $1.50 per hour, $9.50 for 19 hours of help, 22 hours at $.90 per hour for use of a tractor which belonged to him, $5.60 for 2 tanks of oxygen, and $3.00 for a tank of acetylene, and he was given a single check by the county in payment for all of these charges, which were based on the claimant's own records. No attempt was made by the county to supervise the work or to verify the accuracy of these charges of the claimant.
Based on this evidence and other evidence on other features of the case, on which no issue is made by the parties, the hearing director found in favor of the claimant. Subsequently, on appeal, this award was affirmed by the full board and the superior court, and the Board of Commissioners of Roads and Revenues of Tattnall County and its insurance carrier excepted.
The controlling question in this case is whether or not there is any evidence to support the finding of the hearing director, as affirmed by the full board and the superior court, that the relationship of employee and employer existed between the claimant and the Board of Commissioners of Roads and Revenues of Tattnall County at the time of the accident, which admittedly arose out of and in the course of the claimant's employment.
It is settled that a finding of fact by the State Board of Workmen's Compensation is controlling on the superior court and on this court on appeal, in the absence of fraud, where such finding is supported by any competent evidence. Code, § 114-710; American Mutual Liability Ins. Co. v. Adams, 32 Ga. App. 759 ( 124 S.E. 801); Maryland Casualty Co. v. England, 160 Ga. 810 ( 129 S.E. 75). "In claims for compensation under the Workmen's Compensation Act, where the question is whether the injured person, or the person under whom he was working, occupied the relation of an employee or of an independent contractor toward the alleged employer, the line of demarcation is often so close that each case must be determined upon its own particular facts." Liberty Lumber Co. v. Silas, 49 Ga. App. 262 ( 175 S.E. 265); Durham Land Co. v. Kilgore, 56 Ga. App. 785 ( 194 S.E. 49). "In determining whether a claimant in a workmen's compensation case is an employee and subject to the act, or an independent contractor and not so subject, any doubt is to be resolved in favor of his status as an employee rather than an independent contractor." Liberty Mutual Insurance Co. v. Henry 56 Ga. App. 868, 870 ( 194 S.E. 430), and citations. "The test to be applied in determining whether the relationship of the parties under a contract for the performance of labor 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); Cooper v. Dixie Construction Co., 45 Ga. App. 420 (2) ( 165 S.E. 152). In New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682, 684 ( 118 S.E. 786), the method of compensation is given as one of the circumstances for consideration in determining whether the relation of employer and employee exists, and in Glens Falls Indemnity Co. v. Clark, 75 Ga. App. 453 ( 43 S.E.2d 752), payment of daily wages was one of the factors given consideration. "One of the usual and ordinary tests, and in many instances, the decisive test, which stamps one engaged in performing work an employee rather than an independent contractor, is the fact that wages are paid, and that upon an hourly, daily, or weekly basis." C. R. Meyer Sons Co. v. Grady, 194 Wis. 615, 623 ( 217 N.W. 408).
Wilkes was allowed to employ help in dismantling the bridge and to pay $.50 per hour therefor, but this was permitted because such help was not available to the county commissioners, and they limited and controlled his right to do this by specifying the amount per hour that could and would be paid for this help. The claimant was also being paid by the hour for his own labor, and it is inferable that if the charges for his services, that of his help, and the equipment and materials furnished, were not in keeping with the results accomplished, his employment could have been terminated at any time by the commissioners without any liability other than for time already spent on the work, and equipment and materials furnished. While the evidence shows that the charges for the work performed were accepted and paid by the commissioners without question, still they could have controlled the work to the extent of verifying the accuracy of these charges, had it been so desired. The evidence authorizes the finding of the hearing director that the relationship of the claimant to the Board of Commissioners of Roads and Revenues of Tattnall County was that of an employee under the provisions of the Workmen's Compensation Act at the time he sustained injuries arising out of and in the course of his employment, and, inasmuch as this award was affirmed by the full board on appeal, the superior court did not err in affirming the award of the State Board of Workmen's Compensation.
Judgment affirmed. Felton and Parker, JJ., concur.