Opinion
36095.
DECIDED APRIL 30, 1956.
Declaratory judgment. Before Judge Crow. Dougherty Superior Court. April 29, 1955.
Ray Y. Cross, Colquitt H. Odom, for plaintiff in error.
Peacock, Perry Walters, contra.
1. The court did not err in overruling the demurrers to the petition for declaratory judgment.
2. The court erred in finding that the defendant Griffin was an employee of the defendant Paige at the time of Griffin's injuries, and that therefore Griffin came within the exclusion clause of the garage's liability policy issued by the insurance company to cover the plaintiff's operation of a service station.
DECIDED APRIL 30, 1956.
Hardware Mutual Insurance Company of Minnesota brought an action for a declaratory judgment against L. A. Paige and Wade Griffin in the Superior Court of Dougherty County. The petition alleged: that there was a case pending in the City Court of Albany wherein Wade Griffin had sued L. A. Paige for injuries allegedly caused by Paige's negligence. A copy of Griffin's petition in that action was attached to the petition for declaratory judgment as an exhibit, and is as follows: "2. On November 29, 1954, defendant was operating a service station at 900 Oglethorpe Avenue in the City of Albany, Georgia. 3. On November 29, 1954, plaintiff entered defendant's premises as an invitee, express or implied, of defendant. This service station was a public station, wherein the public was invited to stop and partake of the services customarily rendered at a public automobile service station. 4. On said date, while plaintiff was on the premises, the defendant was adjusting the motor timing on an automobile owned by one of defendant's customers. 5. Defendant's regular mechanic was busy and therefore not available to help defendant time the motor aforesaid. 6. Defendant, knowing that plaintiff was an expert mechanic, asked plaintiff to help with the timing adjustment. 7. As a gratuitous service rendered by plaintiff for the sole benefit of defendant, plaintiff undertook to assist the defendant with the timing adjustment. 8. Plaintiff and defendant loosened the generator belt and took the belt off the pulley. The automobile engine was idling. Plaintiff instructed defendant to leave the belt off the pulley until plaintiff finished wiping the pulley clean. 9. Plaintiff began wiping the generator pulley with a cloth. Defendant reached down and put the belt back on the generator pulley. Although the belt had not been retightened and was still loose, a portion of the cloth in plaintiff's hand was between the belt and the pulley, thereby filling the slack space and giving traction to the belt. 10. When the generator belt started to turn, the cloth in plaintiff's left hand was jerked around the pulley; plaintiff's left hand also was caught by the belt and jerked into the pulley. 11. When plaintiff's left hand was jerked into the pulley, the pulley cut plaintiff's hand across the back, cutting the tendons that control the fingers."
The insurance company had issued a Garage Liability Policy covering the operation of Paige's Service Station. Upon being sued by Griffin, Paige notified the insurance company and requested that they defend him in the action. The insurance company contends that there was no coverage under these circumstances because at the time Griffin was injured he was Paige's employee and, therefore, came within the following exclusion in the policy: "(d) Under coverages A and C, to bodily injury to or sickness, disease or death of any employee of the insured while engaged in the employment of the insured."
The insurance company contends that the allegations in Griffin's suit against Paige show that, at the time Griffin was injured, he was Paige's employee. The insurance company further alleged that a declaratory judgment is necessary in order to guide and protect the plaintiff from uncertainty and insecurity with respect to its future acts and conduct in reference to the action between Griffin and Paige. In addition to a prayer for a declaration of the rights of the respective parties, the insurance company prayed for a stay of the proceedings in the City Court of Albany until the matter of the declaratory judgment could be disposed of.
The defendants' demurrers to the petition for a declaratory judgment were overruled. There being no issue of fact involved, the judge tried the case without the intervention of a jury, and found in favor of the insurance company. The defendants except to the court's judgment on the demurrers and merits of the case.
1. The court did not err in overruling the defendants' demurrers to the petition. Georgia Casualty Surety Co. v. Turner, 86 Ga. App. 418 ( 71 S.E.2d 773).
2. The question can be resolved by determining what constitutes the relationship of employer-employee or master-servant in Georgia. Employment means the existence of the relationship of master and servant. Birmingham Trust Sav. Co. v. Atlanta B. A. Ry. Co., 271 Fed. 743 (1). While there is no concrete and inflexible definition of master and servant, and the relationship must be determined from the facts of each individual case, the main consideration is the right of the employer to control the activities of the employee in the employment duties. Labatt's Master and Servant (2d ed.), Vol. 1, p. 9, § 2. "`A servant is one who is employed to render personal service to another otherwise than in the pursuit of an independent calling, and who, in such service, remains entirely under the control and direction of the employer.' 18 Am. Eng. Enc. L. 474; Wall v. State, 75 Ga. 474." Henley v. State, 59 Ga. App. 595, 599 ( 2 S.E.2d 139). In determining whether a person was an independent contractor or an employee, the courts have applied the standard laid down in Code § 105-502 (5) as to whether the alleged employer retained the right to direct or control the time and manner of executing the work. See Cooper v. Dixie Construction Co., 45 Ga. App. 420 ( 165 S.E. 152).
In the present case, since there was no contract of employment, if the relationship of master and servant existed, it would have to be inferred from the circumstances. (As to various elements considered when the relationship is inferred, see Labatt's Master and Servant, 2d ed., Vol. 1, §§ 18-30, p. 56.) Paige merely asked Griffin to assist him in setting the timing of the automobile engine. Nothing was said of wages or compensation; nothing was said as to the duration of the assistance; nothing was said as to what Griffin was specifically to do, and it does not appear that Paige had the right to control the time, method, and manner in which Griffin was to lend his assistance. There is nothing from which it can be inferred that Griffin was the servant of Paige.
Cases where an employee hired an assistant or helper with the knowledge or consent of the employer, those involving borrowed or substituted servants, and those involving the definition of employee under the Workmen's Compensation Act, are clearly not applicable here. In Carstarphen v. Ivey, 66 Ga. App. 865 ( 19 S.E.2d 341), the statement by the court that the defendant's employee was a servant or employee of the plaintiff at the time the plaintiff received his injuries was obiter dictum. The real question which was presented and which controlled the decision was whether the defendant's employee, at the time the plaintiff received his injuries, was acting within the scope of his employment by the defendant.
The court did not err in overruling the demurrers to the petition.
The court erred in finding in favor of the plaintiff.
Judgments affirmed in part and reversed in part. Quillian and Nichols, JJ., concur.