Opinion
31619.
DECIDED JUNE 27, 1947. REHEARING DENIED JULY 16, 1947.
Appeal; from Chatham Superior Court — Judge David S. Atkinson. April 7, 1947.
Newell Edenfield, Powell, Goldstein, Frazer Murphy, Ernest J. Haar, for plaintiffs in error.
Wylly Javetz, contra.
Under the evidence in this case, a finding was demanded as a matter of law that the claimant was an employee, and that he was injured in an accident arising out of and in the course of his employment; and the superior court properly reversed the award denying him compensation on the ground that he was an independent contractor and remanded the case to the State Board of Workmen's Compensation for determination in accordance with such ruling and judgment.
DECIDED JUNE 27, 1947. REHEARING DENIED JULY 16, 1947.
M. B. Clark filed a claim for compensation with the State Board of Workmen's Compensation against his employer, John R. Clark Jr., trading as John R. Clark Son, and the insurance carrier, Glens Falls Indemnity Company, on account of an injury sustained by him, which he claimed arose out of and in the course of his employment. The hearing director found in favor of the employer and insurance carrier, and denied compensation to the claimant on the ground that the claimant was an independent contractor and not an employee at the time he was injured. The superior court reversed the award and finding of the hearing director, and the employer and the insurance carrier excepted.
It appears from the evidence that the claimant sustained an injury, which arose out of and in the course of his employment. The controlling question before this court is whether or not there is any competent evidence in the record to support the finding of the hearing director, that the claimant was not an employee but was an independent contractor.
The evidence on the hearing with reference to this feature of the case was substantially as follows: The employer, John R. Clark Jr. testified to the effect that he was engaged in the ice delivery business, and delivered ice by trucks, horses, and wagons: that he employed the claimant on or about December 15, 1945. in connection with the maintenance and repair part of his business, repairing trucks for future summer business; that on this particular trip, he employed the claimant to go to South Carolina, get one of his trucks, and bring it back and repair it; that he wanted the truck brought back to Savannah and repaired; that the claimant was to bring the truck back by towing it with his truck; that the claimant was a mechanic, and the witness had employed him on previous occasions to repair trucks, and in 1943 the claimant had worked regularly for him as a mechanic; that he paid the claimant $10 a day, which was to cover a reasonable number of hours, presumably 8 hours a day; that, on this particular occasion, he employed the claimant just to repair that particular truck with the understanding that the claimant was to repair the other trucks "as time went through the winter when we didn't have anything to do;" that the claimant had a business which employed him approximately three days a week and they "figured" that the claimant would work about three days a week with the witness; that the claimant was going to work about three days a week for the alleged employer for a sufficient length of time to get this particular truck and repair the trucks and with the understanding that he would work on until springtime; that the claimant had been doing this in the past; that the witness expected to use the truck which the claimant was repairing and the other trucks in his business; that this work was incidental to the operation of the ice-delivery business of the employer, as he had a repair shop; that he had agreed with the claimant to be at his place of business the morning that the claimant was to leave to go after the truck, but that the witness was in bed when the claimant came by his home about 6 o'clock that morning; that he told the claimant to go by the shop and get some tires and a chain, which were necessary for the claimant to use in bringing back the truck; that another employee of the witness was going with the claimant to help with the truck; that the witness had been at the icehouse about five minutes when he heard a blast and went and found that the claimant had sustained a broken leg and an injury to his hand when the head blew off a tire that the claimant was servicing with air and was to be used on the truck which he was to bring back; that the claimant and the witness were cousins; that the claimant was in the ice business at Savannah Beach; that he went to see the claimant about getting his truck back from South Carolina and originally the claimant was to use one of the trucks of the witness, but the witness did not have a truck available that morning, and he agreed to pay the claimant $10 for his labor and $10 additional for the use of his truck; that the witness repaired all of his delivery equipment through the winter, and it was understood that the claimant was to work for him; that the claimant had already repaired his own delivery equipment at Tybee and was going to help the witness through the winter; that on this particular truck his services would have ceased when he brought the truck to Savannah and repaired it, as you would not go on working on the same thing over and over again; that if the accident had not happened and the claimant had gone to South Carolina and brought back the truck and repaired it, his services for the witness would have been at an end except for his securing the claimant's services at a future date if they were needed, and the witness would have needed him; that he did not expect the claimant to work steady in repairing the truck, as he would have to conduct his own business, and he was to do the work at times when his own business would permit him to do it; that he did not pay the claimant anything for the transaction in which he was injured, because the claimant was hurt by the time he got to the place that morning, and he did not know whether the claimant felt like he owed him anything or not; that, under their agreement, he would have paid him $10 for each day that he worked on the truck and $10 for the use of his truck, so that if the claimant had brought the truck back to the witness, he would have received $20 for such services that day; that the claimant worked for the witness in 1943, which was a steady job; that, at that time, the claimant did not have his own business at Savannah Beach; that the claimant had worked for the witness since he was 12 or 14 years old, except when he was going to school; that the cab on the truck that the claimant was going after had to be replaced and the fenders and motor had to be repainted and reconditioned; that the tire which injured the claimant was the one that was to be used on the truck that the claimant was going to bring back, and the work of the claimant in fixing that tire was the first bit of work that the claimant did towards putting the truck in condition; and that this tire belonged to the witness.
The claimant testified in his own behalf substantially as follows: that he went to work for John R. Clark Jr., the alleged employer, on or about December 15, 1945; that he had heard Mr. Clark's testimony, and their agreement was just like he testified it was; that the claimant was to work for Mr. Clark; that he had worked for him a number of times and usually ended up by doing ten or fifteen other things before he finished the work that he was really on; that Mr. Clark was frequently taking the claimant off of one thing and putting him on something else more important; that the claimant supplemented his funds by doing a mechanic's work; that the past summer he could not do what he had been accustomed to do in his work and could not carry ice, and that he had to employ an extra man to take his place, and still had him employed; that he could not work on an automobile or truck as well as he could before the injury; that he could not stoop over and had to favor his leg constantly in his work and could not carry anything; that he was to receive $10 a day for every day that he came to work; that the last time he worked for Mr. Clark before the accident, other than a day now and then, was in 1943 when he worked for him regularly for several months; that he worked for him every once in a while subsequently to 1943; that he just repaired trucks and worked as a mechanic, as that was what he was employed to do; that on the day of the accident, as Mr. Clark had testified, the claimant was putting air in the tire when it blew up and knocked him down and injured him, as had been described in previous testimony; that (in the summer) the claimant was kept busy in his own business at Tybee, but in the winter time he did not have anything much to do because he did not sell enough ice to stay in business, but that he had to satisfy the few people who were down there; that in the winter time he did not make a good living and had to fall back on what he made in the summer every once in a while, but that he did a mechanic's work, such as he did for Mr. Clark; that the ice business at Tybee just disappears after Labor Day, as the people leave and those who live there have mechanical ice boxes; that he had to fall back on his ability as a mechanic to earn a livelihood; that he kept a man all the past winter at Tybee to run his ice business for him, whereas the winter before that he did not need any help as he could easily do it himself and still have three days a week to spare; that he went to work in the shipyard in December, 1943, and between that time and the accident, the work he performed for Mr. Clark under any agreement would not amount to over two weeks, a day now and then; that Mr. Clark paid him $10 a day when he would work for him during that period of time; that he did not know but imagined that the records of the government would show how much money he paid the United States for social security tax for those periods; that he was not to go over to South Carolina alone, as Mr. Clark was sending another one of his employees with him; that he did not know whether Mr. Clark was going over in his car or not, but thought that he was going over in his car to look after things; that Mr. Clark told him to go get the truck and bring it back, but that was not all that he was going to do, but was all that he could do until he got back to Savannah; that Mr. Clark was sending him and another employee together, and he did not know who was to be in charge, as the employee would be as much in charge as he was and knew as much as he did about the thing; that the truck was to be towed back, and they were to put wheels and tires on it and tow it back; that he was to bring the truck back as soon as possible, so that he could get to work on it, but the chances were that he would not have been working on the truck completely, as Mr. Clark had other mechanics there also and they would help him with it; that it was not left to him as to the manner in which he was to bring the truck back, as he did not have the whole responsibility, since Mr. Clark was sending another man and he was to have as much control of the truck as he did, in his opinion; that originally he was to use one of Mr. Clark's trucks, but that morning it could not make the trip as Mr. Clark had to use it on a route and he said for the witness to use his own truck; that he was to work for Mr. Clark and would probably work on for him, as the claimant had a man at Tybee; that the statement made by Mr. Clark, that he did not expect the claimant to work steady in repairing the truck, but that he would have to conduct his own business and would do the work at times when the business would permit him to work on the truck, was correct; and that the claimant, under the conditions as they were then, could work all week because he still had one man at Tybee to look after what little business he had, and the claimant could make more money working for Mr. Clark than he could at Tybee.
The material facts in this case, with respect to the employment of the claimant by the employer and the conditions of such employment, are not in dispute. Both the employer and the claimant testified with reference to such employment, and there is no material conflict in their testimony. Based on the testimony of these parties, the hearing director reached a conclusion that the claimant was an independent contractor and not an employee, and entered an award denying compensation. The judge of the superior court held, when the case was before him on appeal, that the facts in the case, as disclosed by the record, showed conclusively that the claimant was an employee at the time he was injured, and that the accident arose out of and in the course of his employment, and he entered a judgment reversing the finding and award of the hearing director and remanding the case to the State Board of Workmen's Compensation for further proceedings.
It is well-settled law 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). But where the award of the State Board of Workmen's Compensation is based upon an erroneous conclusion drawn from the facts and the law applicable thereto, it is proper for the judge of the superior court to reverse such award and enter such judgment in the case as is proper under the law and the facts as disclosed by the record in the case. Bituminous Casualty Corp. v. Elliot, 70 Ga. App. 325 ( 28 S.E.2d 392); American Mutual Liability Ins. Co. v. Harris, 61 Ga. App. 319 ( 6 S.E.2d 168); AEtna Casualty Surety Co. v. Honea, 71 Ga. App. 569 (4) ( 21 S.E.2d 421); Gay v. AEtna Casualty Surety Co., 72 Ga. App. 122 ( 33 S.E.2d 109).
"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 towards the alleged employer, the line of demarkation 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). And "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); Macon News Printing Co. v. Hampton, 192 Ga. 623, 624 ( 15 S.E.2d 793).
We think that the evidence in this case demanded a finding that the claimant was an employee of John R. Clark Jr. at the time of the injury, and that the injury arose out of and in the course of his employment. The fact that the claimant was paid, or was to be paid $10 a day for his services, and was to work for the employer on such days as the claimant was not employed in his own business, did not change the relationship from that of an employee to that of an independent contractor. Under the testimony of the employer, which was corroborated by that of the claimant, the claimant was employed to go and get a truck of the employer and bring it to the employer's repair shop, where the claimant and the other employees of the alleged employer would repair it; that the claimant was to receive, in addition to the sum allowed him for the use of his truck on that particular trip, the sum of $10 a day for his labor, and that he was supposed to work a reasonable number of hours, presumably eight, each day for this sum; that he was instructed by the employer on the morning the claimant was injured to go to the repair shop of the employer and get the tires that were to go on the truck which he was to repair, and also a chain to be used in towing the truck back; that he was engaged at work in the repair shop of the employer with equipment furnished by the employer at the time he was injured, and that the work which the claimant was then doing was the first work necessary to repair the truck of the employer; that the employer was sending another employee along with the claimant after the truck, and that neither was in charge but both the claimant and this other employee were to work together in getting the truck and in bringing it back to the employer's place of business; that the employer, while the claimant was at work in the employer's repair shop as a mechanic, had or assumed the right to direct the time and manner of executing the work, for the employer would change the claimant from one piece of work to another, and would place other employees to help the claimant and direct or cause the claimant to do many different jobs while at work in the repair shop; and that the claimant was not paid for each job or piece of work which he did for the employer, but was paid a stated wage of $10 a day for his labor.
The judge of the superior court properly reversed the award of the single director and remanded the case to the State Board of Workmen's Compensation for further determination in accordance with such ruling and judgment.
Judgment affirmed. Felton and Parker, JJ., concur.