Opinion
48490.
SUBMITTED SEPTEMBER 14, 1973.
DECIDED DECEMBER 4, 1973.
Workmen's compensation. Fulton Superior Court. Before Judge Tidwell.
Greene, Buckley, DeRieux Jones, Thomas B. Branch, III, Alfred B. Adams, III, for appellants.
Willie Lewis Ham, deceased, was accidentally killed while moving dirt on a piece-work yardage basis. His widow filed a claim for workmen's compensation. The deputy director's finding of fact was that he was an independent contractor and not an employee. On appeal to the full board, the finding of the deputy director was set aside, and the board found that he was an employee, as the employer controlled the time, manner, and method of his operation, and the accident in which he was killed arose out of and in the course of his employment. An award was made in accordance with these findings, including a requirement that the employer pay reasonable and necessary medical expenses and funeral expenses. The superior court, on appeal, affirmed, and the insurer and employer appeal. Held:
The evidence before the board disclosed that the employer directed the time the work was to be done, supplied some labor and employment, and directed him as to what dirt was to be moved and to what place. The evidence did not demand a finding that he was an independent contractor. Compare Employers Mutual c. Co. v. Johnson, 104 Ga. App. 617 ( 122 S.E.2d 308). While there was evidence from which it could have been found that he was an independent contractor, there was also sufficient evidence to find that he was a controlled employee. The evidence being in conflict, and evidence for claimant being sufficient to support the award, the lower court did not err in affirming said award. See International Agricultural Corp. v. Suber, 24 Ga. App. 445 (2) ( 101 S.E. 300); Quinan v. Standard Fuel Supply Co., 25 Ga. App. 47 (1, 2) ( 102 S.E. 543); Mount v. Southern R. Co., 42 Ga. App. 546 (1) ( 156 S.E. 701); Durham Land Co. v. Kilgore, 56 Ga. App. 785 ( 194 S.E. 49); Baird v. Travelers Ins. Co., 98 Ga. App. 882, 884 (1) ( 107 S.E.2d 579).
Judgment affirmed. Hall, P. J., and Clark, J., concur.