Opinion
34347.
DECIDED FEBRUARY 28, 1953.
Workmen's compensation; from Dougherty Superior Court — Judge Crow. September 16, 1952.
Jesse W. Walters, Peacock, Perry Kelley, Ernest C. Britton, for plaintiff in error.
Smith Gardner, contra.
The finding of the Board of Workmen's Compensation that the claimant's immediate employer was the employee or servant of the defendant, and not an independent contractor, was not authorized by the evidence, as it was not shown that the defendant's representatives either retained, under the contract with the claimant's immediate employer, or assumed, by their conduct, the right to control the time, manner, and method of executing the work to be done by the claimant's employer; and, accordingly, the superior court erred in affirming the award of compensation to the claimant against the defendant.
DECIDED FEBRUARY 28, 1953.
Johnnie James Jenkins applied to the Board of Workmen's Compensation for an award of compensation for the loss of both his eyes in an accident, sustained while he was alleged to have been in the employment of Alexander-Bland Lumber Company. The hearing director denied the claim against the lumber company, but entered an award against J. M. Henson, based upon a finding that the claimant was Henson's employee and that Henson was an independent contractor in his dealings with Alexander-Bland Lumber Company. Upon appeal to the full board, the award against Henson was reversed, and the board entered an award against the lumber company after finding that the claimant and Henson were both employees of the lumber company. This award was affirmed on appeal to the superior court, and the lumber company and its insurance carrier except to that judgment.
Only the evidence bearing upon the question of whether Henson and the claimant were employees of Alexander-Bland Lumber Company need be set out. The claimant testified that Henson was his boss; that the lumber was being sawed for and went to Bland Lumber Company; and that he had gone to Alexander-Bland Lumber Company at Henson's direction (after he was injured), but that Bland only asked him if he was insured. He had never seen Bland at the sawmill, but Bland had a woods rider who would tell how far the timber went and how much they were supposed to cut. Henson paid him in cash every two weeks.
J. M. (Mollie) Henson testified in part as follows: He was working for Alexander-Bland Lumber Company; they hired him, told him what to do and how to do it. The company paid him so much a thousand board feet to cut timber and to lay it over at the mill. The sawmill belonged to the lumber company and was furnished to him. The company owned the timber. He understood that the company could fire him at any time; they would tell him what to do, and he had to do what they said if he stayed there. The lumber company representatives came to him and hired him; no written contract was entered into. They showed him the tract of timber to be cut, told him how to cut and where to move from there. He hired his own hands, went to the lumber company to get his check, would come back, and then pay his employees. He was not at the mill when the claimant was hurt, which was on a Thursday, but came by on the following Monday and saw the blood. He paid the claimant's medical expenses because Alexander-Bland would not do so. Walker, of the lumber company, showed him where the tract was on which the claimant was hurt; Walker did not tell him how soon he had to cut it, or what the contract was. Walker did tell him to cut all timber down to ten inches in diameter at one foot above the ground, and that was all. He was told to cut it into boards and 2 by 4's and things like that, and they didn't say anything else. He was never told to cut any particular tree or to saw it to any certain dimensions. He knew when he started what they wanted cut, and was told where to start cutting. He had 15 or 16 employees in the woods and at the mill. He was not told how many to employ, or how many hours or days per week to work. Someone from the lumber company came out when he wasn't there, but he didn't know that anyone from the lumber company ever came out to tell him how to run his business. The lumber company paid him $21.50 per thousand feet for 1 by 4's; $26.50 per thousand for 2 by 4's; and $27 for boards. He was paid nothing for his labor. The lumber company never told him to hire or fire anyone, but it was his understanding that the company had the right to do so. Every two weeks he was paid by check for the lumber which he had cut; the lumber company did not pay his employees, but he paid them out of the money received from the lumber company. He had to keep up the equipment belonging to Alexander-Bland and did this. He had his own logging equipment and a slab conveyor. He could hire and fire his own employees, and never discussed firing any employee with any representative of the lumber company, although he did anything the lumber company told him to do, and would have fired or hired a man if he had been told to do so by the lumber company. He did not know whether their right to hire and fire his employees was ever mentioned between him and the lumber company, and he knew of nothing in their contract about hiring and firing employees. He never moved the sawmill until the particular tract was completely cut. The woods rider working for Alexander-Bland would come around to see how the tract was cut, if it was cut right, or if he left a tree. If Henson left one, the woods rider would tell him or his hands to go back and get it. He could quit, if he didn't want to cut a tract, but he would have to cut it all to carry out the terms of his contract with the lumber company.
Mrs. J. M. Henson testified that she kept the books for her husband, and the time records of the help. Alexander-Bland Lumber Company did not tell them how much to pay their help. Her husband never fired anyone, as labor was short, and he hired all of his employees himself.
S. G. Bland, a partner and the general manager of Alexander-Bland Lumber Company, testified that their manner of operation was to buy a tract of timber and to contract with a sawmill operator to cut it at so much per thousand board feet. They furnished equipment to some of the mill operators and paid them $1 less per thousand feet. Their only control over the operators was to see that they cut down to the size of timber bought. They did not tell them to hire and fire anyone, and he did not know how many employees Henson had, or what Henson paid his employees. They had no agreement with Henson as to the hours or days per week which he should work; their agreement was only that he was to cut a tract of timber of a certain size, and that the equipment furnished was to be kept up and turned back in as good shape as when he got it. Henson bought his own saw bits. Bland occasionally went to the mill to measure the lumber and to see that Henson lived up to his contract. W. R. Walker made the agreement with Henson.
W. R. Walker, the lumber company's mill superintendent, testified that the agreement reached with Henson was for him to cut all the timber of a certain diameter at a given distance above the ground for so much per thousand feet. When the lumber company bought a tract, he would show Henson where it was if Henson didn't know. Henson understood that the company wanted all the wide boards they could get. There was no understanding as to the number of employees Henson would have, and there was no discussion of the right to hire or fire such employees. It is the general practice of lumber companies not to take the right to hire or fire; the mill operator works the men, and Alexander-Bland had never tried to do that. Henson was to keep up and return the equipment furnished by the company. He exercised no control over Henson, as to his employees or the manner of work, but would have told Henson if his men were not doing something according to the contract. Bland could have fired Henson if he broke the contract by not doing what he was supposed to do and by cutting timber that didn't measure up to certain standards. The oral contract with Henson was not to cut all the trees if they were not large enough, but he didn't tell Henson to do it this way or that way. Henson was a good mill hand and knew more about getting the most lumber out of a log than he did, but he could have told Henson, if his work was not satisfactory, that they would have to break the contract.
Thomas S. Kemp, the lumber company's forester, testified that he would go into the woods to see whether Henson was cutting down to the diameter of timber purchased on the particular lease, and that he checked at the sawmill to see whether Henson was wasting any lumber, or whether it was too narrow or too thick or too thin. He was to see that the lumber cut was up to standard. He did not remember having ever told Henson's employees what to do. He only checked to see that Henson was living up to his contract and to control the waste. If Henson left the small timber, that was waste of what the company expected to get out of the tract. Or it was waste if the lumber was sawed too thick or too thin. In such case, he would tell Henson that something was wrong with the mill, that he was turning it too much, and that it should be corrected. He occasionally took Henson with him to inspect other tracts which the company intended to purchase, but Henson was not paid for such services or advice.
Henson, recalled, testified that he was told by Kemp that he had to cut within a year the tract on which the claimant was injured.
The sole question for determination here is whether there was any competent evidence adduced at the hearing to support the finding of the Board of Workmen's Compensation that the claimant and Henson, under whose supervision the claimant was working when injured, were then employees of Alexander-Bland Lumber Company.
As ruled in Cooper v. Dixie Construction Co., 45 Ga. App. 420 (1) ( 165 S.E. 152): "Where, under a contract between an employer and a contractor for the doing of certain work, the employer retains the right to direct or control the time and manner of executing the work to be done thereunder, the relation of master and servant exists, and not the relation of employer and independent contractor." The test is 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).
There are numerous statements in Henson's testimony which are contended to have authorized the finding that he was the servant of the lumber company rather than an independent contractor, such as the following: "Q. Will you state to the director just what your understanding was at the time you went in the employ of Alexander-Bland Lumber Company; what your rights were and their rights were? A. Well, what rights I had — I was working for them and they could fire me at any time. They'd tell me what to do and I had to do what they said if I stayed there. You know, if I was working for you, you'd have a right to tell me what to do and have the right to fire me. Q. And that was your understanding? A. That's right. Q. Of your contract that you had with them when you went to work for them? A. Yes, sir."
There was other testimony by Henson to the effect that the lumber company told him what to do and how to do it, where to go, and how much time he had to cut a tract. But each of these statements was further amplified. Henson was shown a particular tract of timber, told what size of timber had been purchased or leased, and told how much time the lumber company had to get the timber out. After testifying that he was shown where the tract on which the claimant was injured was located, and was told to cut all the timber in the particular tract measuring ten inches in diameter at a foot above the ground, Henson further testified on cross-examination: "Q. What else did he tell you? A. That's all he told me. Q. Did he tell you how to cut this timber, other than what you have already said; did he tell you how long to cut it? A. He told me to cut it; he wanted it in boards and 2 by 4's and things like that. Q. Did he say he wanted 1 by 8's? A. No, sir. Q. What did he tell you about cutting this timber? A. I told you what he told me. Q. Did he say anything other than he wanted you to cut this tract of timber in boards and 2 by 4's and 1 by 4's? No, sir."
Also, while Henson testified that he would have to do anything the lumber company told him to do, that he would have hired anyone the lumber company told him to hire, and that he would have fired anyone if the lumber company told him to do so, he further testified that he hired and fired his own employees, and he knew of nothing in his parol contract with the lumber company as to hiring and firing his employees. He testified that he was not told how many to employ, or how many hours per day or days per week to work, and that he would have to cut all the timber of the specified size on a particular tract to carry out the terms of his contract.
Henson was, in effect, a party to the case. The hearing director entered an award against him, and his interest was opposed to that of the lumber company. Resolving the inconsistencies and ambiguities in his testimony against him, as a party to the case, it appears that the contract between Henson and the lumber company was substantially as follows: Henson was to cut all timber of a certain diameter or larger, measured at a given distance above the ground, on timber tracts leased or owned by the lumber company and to be pointed out to Henson if he did not know where they were. The lumber company was to furnish a sawmill, and Henson was to maintain and operate it, supplying the logging equipment and labor himself. Henson was to receive $21.50 per thousand feet for 1 by 4's; $26.50 per thousand feet for 2 by 4's; and $27 per thousand feet for boards. Henson in cutting the trees was not required to saw them to any certain dimensions, other than standard dimensions as required by the average lumber company, such as 2 by 4, 1 by 4, etc., in lengths of even numbers of feet. While the lumber company desired as many wide boards as it could get, they left it to Henson's judgment as to which of the standard sizes of lumber the logs should be sawed into, but they agreed to pay more for boards than for 2 by 4's and 1 by 4's. Nothing was mentioned as to the firing or hiring of help by Henson. The contract itself did not give the lumber company the right to control the time, manner, or method of the work specified for Henson to do.
It is contended that the conduct of T. E. Kemp, the lumber company's forester or woods rider, amounted to an assumption by the lumber company of the right to control Henson's manner and method of working. Kemp would inspect the tract to determine whether any trees of the size purchased by the lumber company had been left by Henson, and to ascertain whether the lumber was being sawed too thick or too thin; this Kemp referred to as "controlling the waste." If any of the trees purchased were left standing, Kemp would tell Henson or Henson's employees to cut them; and if the lumber was being sawed too thick or too thin, or not up to standard, he would tell Henson that something was wrong with the mill or that he was turning it too much. However, as ruled in Poss Lumber Co. v. Haynie, 37 Ga. App. 60, 62 ( 139 S.E. 127), "The lumber company was entitled to see that the work was performed in accordance with the contract, and had the right, as owner, to caution against waste of the timber, provided there was no interference as to the particular method by which the work was to be done or as to the means by which the given result was to be accomplished, and it was the privilege of the company to exercise such rights as incidents of the contract, without becoming liable as the master or employer of Campbell's [the sawmill operator's] laborers."
It is also contended that the facts that Kemp would sometimes ask Henson to come with him to look at a tract of timber and advise as to what it would cut, but that Henson was not paid for such services, show that Henson was an employee. However, when taken in connection with the fact that Henson was not at the mill on the Thursday when the claimant was hurt, and did not return until the following Monday, this evidence shows that Henson's time was his own, and that he could come or go as he pleased, whether on his own business or on inspection trips with Kemp which were of benefit to the lumber company.
While each such case as this must be determined upon its own particular facts, we think the facts in the present case match those in Zurich Ins. Co. v. Lee, 36 Ga. App. 248 ( 136 S.E. 173), Irving v. Home Accident Ins. Co., 36 Ga. App. 551 ( 137 S.E. 105), Bentley v. Jones, 48 Ga. App. 587 ( 173 S.E. 737), Scott v. Minor, 55 Ga. App. 714 ( 191 S.E. 263), Banks v. Ellijay Lumber Co., 59 Ga. App. 270 ( 200 S.E. 480), and Mauney v. Collins, 64 Ga. App. 330 ( 13 S.E.2d 97), more closely than they resemble the facts in Ocean Accident c. Corp. v. Hodges, 34 Ga. App. 587 ( 130 S.E. 214), Love Lumber Co. v. Thigpen, 42 Ga. App. 83 ( 155 S.E. 77), Home Accident Ins. Co. v. Daniels, 42 Ga. App. 648 ( 157 S.E. 245), Liberty Lumber Co. v. Silas, 49 Ga. App. 262 ( 175 S.E. 265), and Lokey Simpson v. Hightower, 57 Ga. App. 577 ( 196 S.E. 210). One distinction between these two lines of cases is that the employees in the latter group were engaged preponderantly in manual labor, exerting largely muscular effort for their employers; and, in such a case, where the contract between the parties is inconclusive or indefinite, the finding of an employer-employee relationship is aided by the inference that the employer has the right to direct and control the manner in which such work is performed. On the other hand, the persons found to be independent contractors rather than employees, in the first group of cases above cited, were engaged, as was Henson in the present case, in fairly complex operations of cutting, hauling, and sawing timber, which required skill and experience and executive ability; and in such cases it cannot be inferred that the lumber company or the owner of the timber being cut has retained the right to control the time, manner, and method of performance.
The finding by the Board of Workmen's Compensation that Henson was an employee or servant of Alexander-Bland Lumber Company, so that the claimant was also an employee of the lumber company, was not authorized by the evidence, for it was not shown that the lumber company either retained, under the contract, or assumed, by their conduct, the right to control the time, manner, and method of executing the work to be done by Henson. Accordingly, the superior court on appeal erred in affirming the award of the board.
Judgment reversed. Felton and Worrill, JJ., concur.