Malcom v. Sudderth

Full title: MALCOM v. SUDDERTH

Court: Court of Appeals of Georgia

Date published: Nov 20, 1958

106 S.E.2d 367 (Ga. Ct. App. 1958)

106 S.E.2d 367

Opinion

37253.

DECIDED NOVEMBER 20, 1958.

Workmen's compensation. Gwinnett Superior Court. Before Judge Clinkscales. May 1, 1958.

William F. Woods, for plaintiff in error.

Joseph E. Cheeley, contra.

The award of the State Board of Workmen's Compensation was supported by ample competent evidence and should not have been disturbed by the judge of the superior court.

DECIDED NOVEMBER 20, 1958.

Lillious Malcom filed a claim for workmen's compensation against Erskine W. Sudderth, employer, for injuries sustained while working at the employer's sawmill.

The only ground of the appeal which the employer insisted upon before the judge of the superior court was that there was insufficient evidence to support a finding that he was an employer covered by the Workmen's Compensation Act.

On the hearing on the claim, Malcom testified in part: "On or about July 13, 1956, I was employed by Erskine Sudderth running an edger at the sawmill and the pin come out of the roller and I went to put the pin in and I got my fingers cut off; I got the first two from the thumb cut off on my left hand; there were two joints cut off of each of the two fingers; Erskine hired me; I didn't have no certain duties; he put me to running the edger; William Malcom caught the lumber, he is my brother; Cliff Dodd carried strips and Robert Dodd carried slabs; I know Winton Sudderth, he was dragging logs with the tractor from the woods to the mill; I know Gene Kendricks, he was driving a tractor like Winton; I know Buck Turner and he was employed there, he was turning logs; I know Jack Dodd and he was employed there rolling down logs; I know J. T. Dodd, he was employed there and he was helping in the woods and at the mill too; I know Billy Sudderth, he was employed there hauling lumber; I know Grady Sudderth, he was employed cutting timber; I know Tom Jones, he was employed there dragging logs with a mule; I know David Bailey, he was employed there helping cut logs; I know Ralph Wheeler, he was employed there cutting lots; I know a man named Mr. Thomas, he was dragging logs with a mule; Mr. Sudderth worked there too, he was sawing; as I can remember all of those were working there on July 13, 1956, I drove a tractor beforehand and I drug a few logs beforehand in the woods; from the time the tree is cut down the man with the mule drags them up into a pile of six logs and the tractor comes along and picks them up and takes them to the mill and they saw them; Erskine Sudderth operated the saw; I have drug some of the logs from the woods to the mill; Mr. Sudderth never did tell any of us what to do and such as that, he just cranked up every morning at 8 o'clock; if he needed somebody to pull logs out of the woods, he would tell some of us to do it, or the ones driving the tractor then to do it; other than dragging logs out of the woods and helping on the saw I helped run the power saw, the saw to cut down trees and I trimmed up some and tailed the edger some and I run the edger, that's what I was doing when I got my fingers cut off; normally it takes a good many men to run a saw mill; I averaged around $35 on up to $40 a week; to operate a saw mill it takes about 10 hands, if not more; seven men were working at the mill the day I was injured counting Erskine; they were Cliff Dodd, Robert Dodd, William Malcom, Erskine Sudderth, J. T. Dodd, Jack Dodd and myself; Jack Dodd was rolling down logs and getting us water; he is 12 years old; Cliff Dodd is Jack's daddy; Cliff Dodd and Jack Dodd are related to me; Tom Jones was dragging logs with a mule at the woods, he is about 60 years old; David Bailey was in the woods cutting timber; Buck Turner was turning logs at the mill; Billy, Winton and Grady Sudderth are Erskine's boys; I do not know exactly how far it was from where the people were cutting timber to where the mill was located; I had not been cutting timber at this particular location, I had been working at the saw mill; the people that were doing the logging were going back and forwards from the mill into the woods; we had two mules down there logging that day; Tom Jones and Mr. Thomas were using the mules; Winton Sudderth and Gene Kendricks were using the tractors; I am absolutely sure that Tom Jones was working there on July 13 and as best I can remember David Bailey was working there on July 13th; Mr. Sudderth stayed at the mill all of the time, he was running the saw; I saw Grady Sudderth, Gene Kendricks, and Ralph Wheeler during the daytime, during the time I was sawing; Erskine furnished the power saws to cut the logs with, he had a bunch of them; I do not know who owned the saws; I do not know who furnished the gas for the chain saw, all I know is they would just bring in a barrel at a time; Billy Sudderth was hauling lumber with a truck; Billy Sudderth lived in the house with his father at the time of the accident; I do not know how much Jack Dodd made, he was an 11 year old boy; this gasoline that was brought in there in barrels was brought by Erskine Sudderth on the truck; he always brought it; after he got it there he put it there where it would be close to the motor and stuff; it was used for tractors, power saws and motors, to crank the motor up; Grady Sudderth operated the saw some, I guess about an hour when Erskine had to go out into the woods, or something or other; Erskine didn't go over in the woods often, whenever he did, Grady or Bill one would operate the saw; I have gone out and drug the logs in from the woods myself."

William Malcom testified in part: "I am the brother of Lillious Malcom; I was working at Erskine Sudderth's saw mill on July 13, 1956; Erskine Sudderth operated the saw at this mill; I carried lumber from the edger; I know Cliff Dodd and he was working on that day; he was carrying strips or slabs one, I wouldn't be sure; I know Robert Dodd, I don't exactly know what he was doing on that day, but he was there at the mill; Winton Sudderth was dragging logs; Gene Kendricks was dragging logs; Buck Turner was turning logs; Jack Dodd wasn't there that day; he is a boy; I know J. T. Dodd was helping out with the turning of the logs; Billy Sudderth was hauling lumber; Grady Sudderth was in the woods cutting logs; Tom Jones drug logs part of the time; Benjamin Thomas was dragging logs part of the time; David Bailey helped in the woods with the power saw; Ralph Wheeler helped cut timber part of the time and helped haul lumber some; George Wood turned logs a while; all of these people were working there on July 13, 1956, except David Bailey; they were all employed, including David Bailey, but he just wasn't there that day; I have drug logs from the woods; I have operated a tractor; I have seen Grady Sudderth operate the saw a few times, but not very many; I have seen Erskine a few times walking around in the woods; I have never seen him working in the woods; Jack Dodd hadn't been away for a right smart time, I won't say exactly how long it had been; the ones working at the mill where I was working on July 13th were Buck Turner, J. T. Dodd, Cliff Dodd, me and my brother and Robert Dodd I think; in other words, six and Mr. Sudderth at the mill makes seven people at the mill; I am not certain about Robert Dodd; I just brought the logs from the woods to the saw mill, from where they were piled there to the saw mill; Erskine told me to do that."

Erskine Sudderth testified in part: "On July 13, 1956, Lillious Malcom was working for me; my occupation is mostly sawmilling; these two Malcom boys and two Dodds and that Dodd boy were working for me at the mill; I had two Malcom boys, three Dodd men and counting myself there at the mill that day made six; as to how I had the other people employed, I had Grady and Ralph Wheeler contracted to cut the logs; I had a contract with them; I give them $6 a thousand and they cut them when they got ready and they worked as long as they wanted to; that's my son Grady Sudderth and Ralph Wheeler; Ralph and Grady furnished the saw; they bought the saw for that particular purpose; they used their own gasoline in that saw, they didn't use mine; I did not have any control over the manner in which they performed their work; I never had a thing to do with the manner in which they worked or which way they did it; I never had nothing in the world to do with what they did or how they performed their work; Winton and Kendricks did my logging; Gene Kendricks and Winton Sudderth were dragging logs with a tractor; I was paying these two people by the thousand: $4 per thousand for logging; I guess that I had been at this particular location about a week and a half; on this particular day, the day the injury occurred, I had Mr. Thomas hired dragging with a mule; Buck Turner wasn't working for me on July 13th; I don't think he was in my employ on July 13th. I didn't have a man named Tom Jones working for me on July 13, 1956; I didn't have an eleven-year-old boy employed by the name of Jack Dodd, he wasn't even there; Billy, that boy of mine, was hauling lumber for me with the truck; he was living with me; I paid Billy $1.75 a thousand for hauling lumber; I sure didn't supervise the work of Winton Sudderth and Gene Kendricks; I just hired Winton Sudderth to log it at so much a thousand, that's all there is to it; I didn't tell him how or when to log, he know how to log, I didn't tell him nothing; I did the sawing myself at the mill; I didn't have time to go out in the woods and supervise any of the people out there; in addition to the six — five people at the mill and myself I had Mr. Thomas working in the woods drawing logs with a mule; I didn't have anyone else employed in the woods, I didn't have anything to do with the rest of it at all myself; I don't know whether I received a notice to produce certain papers or not; I don't remember whether my lawyer asked me anything about my pay-roll records or not; he didn't ask me to bring nothing to this hearing; I do not have them with me; I kept it in a book of how much I paid and how I paid it; I kept it in one of them regular books; it is a small book; I just kept down the time and put it in there; I would list the people that were working on that particular day; I don't know if I put down the day but I put down the hours; we paid off every Friday evening; sometimes I would pay from those records and sometimes I wouldn't that I put down in the book; I can remember how much a man works if he works regular; I made a tax return to the U.S. Government; I made three returns to the Government, I just made, yeah ever three months I reckon I send one off; I made out those returns from the little pay-roll book that I kept. I had my boy's wife fix the papers; I think that I been paying to the State of Georgia a year or longer; I don't know what that is for; I paid all of it, social security; I make social security returns every three months; I have copies of the returns that I made on that at home; I have copies of returns that I made to the Federal Government for taxes at home. I have these little books that I kept my pay-roll in at home; I don't know whether I made any returns to the Labor Commission of the State of Georgia for unemployment tax purposes or anything of that nature or not, I had his wife fix out the papers and I sent off everything I was supposed to send off, that's all I know; I do not know to my own knowledge what is on those returns; this time book that was used at the time Lillious Malcom was working with me last summer is at my house; when I got the mill set up I was ready to saw, the ones logging the mill, they were getting the logs; they started about the same time that we did; I would not go in and show them what to saw and so forth; they would know what to cut because that boy of mine had been all over the timber with me and he was with me when I bought it; this particular tract that we were cutting there was down to four inches — six inches I think; they never did cut nothing under six inches because it wouldn't make nothing, it wouldn't be big enough to make nothing but two-by-fours; on this particular time around July `56 I didn't know how many saws were used in the woods because I wasn't in the woods; most of time I reckon they just used one saw, I don't remember being in the woods myself; I wasn't down in the woods while they were cutting, as I know of; I've cut many a tree; on this particular tract I cut some timber myself, they left some trees down there on rough places and I cut them because I bought them and I thought I would get them; I didn't want to buy them and leave them there, a fellow's got to get them; Grady Sudderth and Ralph Wheeler were cutting the timber; it just takes one man to operate the saw; I reckon the other one was trimming up — that's all he could be doing, marking up timber you know; to my own knowledge I do not know what he used; I have an old saw down home, it wasn't used on this job; my saw wasn't any account and wouldn't run; I had my saw there when we set the mill down; Grady didn't start using it originally, he had an old saw of his own and he went and traded it for a new one; my saw wasn't used, I don't recokon; I don't reckon my saw was used at all, it wouldn't run; Winton and Gene Kendricks were dragging logs with a tractor; I owned the tractor; they were using two tractors and I owned both of them; they didn't use anything else in dragging the logs; Billy Sudderth hauled lumber on my truck; I owned the truck; I just let him order the gasoline himself; I did not buy the gasoline for the tractors; they bought the gasoline for the tractors and brought it in on a truck; I didn't need no gas except to crank the motor, I didn't use gas for anything else; I had two trucks and I think I brought gas in there most of the time myself, and I would get it for the boys on Saturday evening — Saturday morning, I believe; I would come by there sometimes and did get it; just which ever one had the truck would pick up the gas when they were out; the mill was mine; the edger and all the equipment was mine, everything was mine; everything on the job was mine except Grady went and bought one saw, everything else was mine; Grady has operated the sawmill, but if he ever sawed over there where he got his fingers cut off I don't remember anything about it; I don't think he operated the saw; if he did over there I don't know where I was at, I don't remember nothing about it; if I have to go off somewhere we just quit, Grady doesn't come over and operate the saw; nobody ever operated the saw but me up till five or six months ago; sometimes we would leave the tractors at the mill at night and sometimes we would carry them to the house; the trucks stayed at my house at night; that boy always brought the truck in, Billy and I drove one of them back and forward to the mill; I don't think I had as many as ten employees when I worked up there on my place; I don't think that I have ever worked as many as ten people, I generally had some of it contracted for; if Billy didn't carry the lumber away from the mill, I don't know what I would have done, but he always kept it out of the way; if he hadn't I guess that I would have hired somebody else to do it; if Winton and Gene didn't log the timber I would have to hire somebody else to do it or I would have to quit; if Grady and Ralph hadn't cut the timber, I tell you what I done, I just took my hands at the mill and cut it myself; that's the way I done it, and I logged it and then sawed part of it and that's just the way I'd do it; when I hire men to cut timber I don't have nothing to do with it; all I want is just to get it cut; if he had just cut part of the timber I would try to get him to cut the rest of it unless he wanted to quit; logging the mill was by Winton and Gene Kendricks; they were supposed to keep a sufficient supply of logs on hand for me to operate the mill, of course, it got to where they couldn't keep them at the mill and we would go there and work a half day and let them log and we would go back home, but that was after he got his fingers cut off; Ralph and Gene cut the timber; I contracted with the owner of the land to cut it at six inches which gives you a two-by-four; then I hired Grady and Ralph to cut the timber and they were told to cut it at six inches and they weren't suppose to cut anything else and I paid them so much a thousand for that; Winton and Gene would log the mill with my tractors, and to keep the mill going they had to log it; this boy hauled the lumber from my mill on my truck and I paid him so much a thousand for hauling. Prior to that time we cut the timber and then got in and sawed it; I raised a family of seven boys; they have always been taught to work with me at the sawmill."

Grady Sudderth testified in part: "I worked with my father at the sawmill and I know Lillious Malcom; on or about July 13, 1956, I was cutting logs for my father, Erskine Sudderth; the location of the timber was back on the other side of Buford; the arrangement that we had with my father was that we were cutting the logs by the thousand; $6 a thousand, me and Ralph Wheeler; we cut with a power saw; the saw belonged to Ralph and me; Ralph and me got the chain saw at Moss Equipment; Ralph and me paid for the saw together and paid for the gas and stuff like that and then we split what was left; we did not have any regular working hours for cutting the timber; no one come around to tell us what to cut, when to cut or how to cut; we were cutting pine and oak timber; if I had wanted to I could have cut the timber at nighttime; Erskine Sudderth did not exercise any supervision over me and I could use my own methods and means of cutting the timber; I just had to keep ahead of the loggers; sometimes we used one saw and sometimes we used two of them; the other one belonged to me; I never did use my Dad's saw over there, I have used it; I have sawed some lumber; I have never worked at the mill over there; I have never replaced my Dad when he went to town; I haven't replaced him over there, I saw for him all the time; I have sawed before that; about operating the saw mill, I don't exactly know when he got hurt, but Winton and I sawed for two or three weeks for him, but I never operated a saw on the particular tract we are referring to; on the job that I did just before that on my Dad's place I was not paid by the thousand when I was sawing; I cut logs off and on about 15 years and I've been paid by the thousand all the way through."

Billy Sudderth testified in part: "I recall Lillious Malcom getting hurt at the mill on or about July 13, 1956; on that date J. T. Dodd, Bob and Cliff Dodd, and William and Lillious Malcom were working at the saw mill and Ben Thomas was working in the woods; Ben Thomas was dragging logs; I was hauling lumber by the thousand; Gene Kendricks and Winton were paid $2 a thousand, well it was $4 a thousand, between the two, it was $2 a thousand; Winton and Gene were dragging logs, they got $2 a thousand; my dad owned the truck that I hauled the lumber on and kept it up and I drove it for him; an eleven-year-old boy named Jack Dodd was not working down there; Buck Turner was not working at the mill on July 13, he had quit before then; I loaded lumber on the truck I hauled; I hauled the lumber and took it to the lumber yard and no one supervised me; I hauled all of the lumber to the same place; my dad told me where to haul the lumber because it was his lumber; the number employed in all, cutting, logging, sawing, hauling and what have you, there were three of them Dodd fellows, Lillious and William Malcom, that would be five, and one dragging with the mule, that would be six, and two driving the tractors and me hauling the lumber and Grady and Ralph Wheeler cutting logs."

Winton Sudderth testified in part: "I know Lillious Malcom; I don't remember the date that he got his fingers cut but I remember the day; on that day I was just starting away from the mill with the tractor, I had just brought a load in and I was starting after another; me and another boy was logging by the thousand with the tractors; the other boy was Gene Kendricks; we were hauling them into the mill; the ones working at the mill as far as I can remember when Lillious got hurt were Cliff and Robert Dodd, J. T. that's Robert's boy and Lillious and William; my brother and Ralph Wheeler were working in the woods; they were contracting to cut that timber by the thousand and Ben Thomas was bunching logs with a mule; I was paid by the thousand; we were paid $4 a thousand, we split it $2 apiece; none told me how to log or where to log or what to log; the tractor was my dad's; each week we would have some logs in and he would pay us something; there was no one around there to tell me how to do the job; I used my own means and methods in hauling the logs or drawing the logs to the mill; I was just carrying the logs from where Mr. Thomas bunched them to the mill to be sawed; there wasn't much choice in how to bring them except from where Mr. Thomas bunched them to the mill; there wasn't any other place to carry them; I am 20 years old now; I was 19 at the time Lillious got his fingers cut off; we had to pay for the gas and oil; we bought the gas at the Riverside Grocery; I might have borrowed some gas from dad; part of the time he brought the gas out in the morning in a barrel and let it sit there and we used it; we paid for the repairs of the tractors, flats and things like that; we fixed the flats sometimes ourselves; my dad never did buy any tires for the tractors over there; I reckon the tires that are on there now are the ones that come on the tractors."

Erskine Sudderth further testified in part: "As to whether that is a copy of my 1956 Federal tax return, I can't read; where it says $663.81 for chain saw, I bought a new saw; that is for parts for them; when I cut timber down there I had two and I bought parts for them; a sawmill operates on tractor fuel; it is not gasoline; all the gasoline that I would use over there was in the operation of my trucks; I used it in the tractors down there; on the job where he got hurt they used it in the tractors too, but I didn't pay for that; that $698.97 includes everything that I bought gasoline for; that item $382.96 for truck tires and tubes is the same truck we are talking about."

After the hearing the director wrote an award in favor of the claimant. The employer appealed to the full board and the director's award was affirmed. The employer then appealed the case to the superior court which reversed the full board on the ground that the employer did not have a sufficient number of employees to bring him within the Workmen's Compensation Act. The claimant now excepts to that ruling.

NICHOLS, Judge.

The only ground of the appeal which the employer insisted upon before the judge of the superior court was that there was not in the record sufficient competent evidence to warrant the award of compensation entered up by the State Board of Workmen's Compensation.

The record is replete with the evidence and it is conceded that every element of proof necessary to sustain the award is present, except that the employer contends that he was not an "employer" within the meaning of the workmen's compensation law and Code (Ann.) § 114-101 because he did not employ ten persons in carrying on his sawmill business.

The evidence showed without dispute that five persons were employed at the immediate site of the sawmill and that the employer had another employee logging with a mule. There was a conflict as to whether on the day the claimant was injured a lad by the name of Jack Dodd was employed by the employer and actually working at the sawmill; as to this issue the claimant testified the boy was working at the mill on that particular day. He was corroborated by the employer's witness, Billy Sudderth. The employer denied that the boy was, at that time, or for considerable time prior to the day the claimant was injured, employed by him or at the sawmill. A claimant's witness, William Malcom corroborated him. Five other people, Grady Sudderth, Ralph Wheeler, Winton Sudderth, Gene Kendricks, and Billy Sudderth were employed to perform services necessary in carrying on the business of the sawmill. The employer contends that these laborers were independent contractors and not employees. Upon the decision of this single question hinges the determination of whether ten employees were engaged in the operation of his sawmill business. The latter question is, as stated, the ultimate and only question to be passed on by this court.

If there is competent evidence in the record from which the single director and the Compensation Board could have entered an award predicated on the finding of fact that the five people, or any three of them, were in fact employees, then the award must stand and the judgment of the superior court judge setting it aside must be reversed. South v. Indemnity Ins. Co. of North America, 41 Ga. App. 827 ( 155 S.E. 48); Sears, Roebuck Co. v. Griggs, 48 Ga. App. 585 (5) ( 173 S.E. 194). Or if, from the facts proven on the hearing before the director, it could be legitimately inferred that those laborers were in fact employees the award must stand. Travelers Ins. Co. v. Reid, 54 Ga. App. 13 ( 186 S.E. 887).

In determining this question the purpose of the act must be considered and to that end it must be given liberal construction. A specific rule springing from this principle is that "This court, in reviewing an award by the full board denying compensation, must accept that evidence most favorable to the employer; and if, so viewed, it authorizes an award denying compensation under the provisions of the Workmen's Compensation Act (section 114-101 et seq.) it must be affirmed." Merry Bros. Brick c. Co. v. Holmes, 57 Ga. App. 281 ( 195 S.E. 223).

The law does not permit the employer, simply by designating certain of his employees independent contractors, to by-pass the workmen's compensation law, and this is true, although the employer may bona fide believe that the end referred to may be accomplished in the manner mentioned.

We are cognizant of the fact that the employer testified that Grady Sudderth, Ralph Wheeler, Winton Sudderth, Gene Kendricks, and Billy Sudderth were independent contractors and not his employees. But there the rule must be considered that the character of a contract, and the relationships created by its terms is determined not by what the parties call the instrument, but by the evidence as to its contents and the circumstances surrounding its execution and performance. Rhodes Son Furniture Co. v. Jenkins, 2 Ga. App. 475 ( 58 S.E. 897); Oaks v. Singer Sewing Machine Co., 17 Ga. App. 517 ( 87 S.E. 719). "In determining the real character of a contract, courts will always look to its purpose, rather than to the name given it by the parties." Hays v. Jordan, 85 Ga. 741, 748 ( 11 S.E. 833, 9 L.R.A. 373).

It must also be considered that triors of fact are not compelled to accept the sworn version of a witness to a particular fact, much less the witness's construction of a contract, if there are facts and circumstances proven from which a contrary conclusion may be reached. Scott King v. Ayers, 66 Ga. 254. "Nor is the Department of Industrial Relations bound in every case to accept the literal statements of a witness before it merely because such statements are not contradicted by direct evidence. Implications inconsistent with the testimony may arise from the proved facts; and in still other ways the question of what is the truth may remain as an issue of fact despite uncontradicted evidence in regard thereto." Cooper v. Lumbermen's Mutual Cas. Co., 179 Ga. 256, 260 ( 175 S.E. 577).

The test of whether persons employed in the business of another are independent contractors is determined under various rules of law, some of which are applicable to the facts of the instant case. Often the rule that an independent contractor is employed to obtain an end result in his own way is misconstrued in that the word "result" is given a meaning different from that intended by the workmen's compensation law. The true rule is: "Generally speaking, an independent contractor is one who, in rendering services, exercises an independent employment or occupation, and represents his employer only as to the results of his work, and not as to the means whereby it is to be accomplished. The word `results', however, is used in this connection in the sense of a production or product of some sort, and not of a service." Maryland Casualty Co. v. Hunt (Tex.Civ.App.) 271 S.W. 929, 932.

The cardinal rule, frequently applied, is whether the employer has the right to control or direct the manner and time in which the work is performed. Bentley v. Jones, 48 Ga. App. 587 ( 173 S.E. 737); Yearwood v. Peabody, 45 Ga. App. 451 ( 164 S.E. 901).

Another important rule pertinent to the discussion of whether the relationship existing between an employer and those in his service is that of employer and independent contractor is well stated in 99 C. J. S. 342, § 98 (55), "In order for one to be an independent contractor so as to be outside the protection of the workmen's compensation act, the contract of employment must itself be one, which contemplates a definite beginning, continuance, and ending."

We find the pronouncement in Mitchem v. Shearman Concrete Pipe Co. 45 Ga. App. 809 (1) ( 165 S.E. 889), "Where one is employed generally to perform certain services for another, and there is no specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the employer has retained the right to control the manner, method, and means of the performance of the contract, and that the employee is not an independent contractor."

We have previously seen that the work done by Ralph Wheeler, Gene Kendricks, and the Sudderth boys was so simple as to require no continuous control or supervision and there were circumstances and some positive evidence from which it could be inferred and concluded, that the employer, Sudderth, exercised general supervision and control of their labors. In Swift Co. v. Alston, 48 Ga. App. 649, 651, 653 ( 173 S.E. 741), it is held: "The testimony of the officers of the defendant company that they at no time directed, controlled, or assumed any control over Oliver in the means, manner, and time of doing his work is itself only circumstantial evidence to be considered as to whether the company had the right to so control the work, for the test is not whether the defendant did in fact control and direct plaintiff in his work, but is whether it had the right, under the employment, taking into consideration the circumstances and situation of the parties, and the work, to so control and direct him in his work. . .

"To constitute Oliver an independent contractor it must at least appear that the work to be performed was committed exclusively to his discretion. The nature of the work done by Oliver no less than the agreement or the circumstances surrounding the work, failed to show a foundation upon which to hold that he was an independent contractor."

According to the evidence in the present case the contracts under which Grady Sudderth, Ralph Wheeler, Winton Sudderth, Gene Kendricks, and Billy Sudderth were employed did not stipulate or fix the period of their employment, did not require of them ultimate result, but contemplated only that they render daily routine services of a simple manual nature necessary in carrying on the employer's sawmill business.

Probably the most helpful rule is supplied by the genius and sense of Chief Judge Sutton: "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." Alexander-Bland Lumber Co. v. Jenkins, 87 Ga. App. 678, 685 ( 75 S.E.2d 355).

And where, as here, the person employed is only engaged to do piece work, certain other rules must be applied. The court has held that employment of one to do piece work is not conclusive of his status either as an employee ( Maryland Cas. Co. v. Radney, 37 Ga. App. 286, 288, 139 S.E. 822), or as an independent contractor ( Employer's Liability c. Corp. v. Smith, 86 Ga. App. 230, 233, 71 S.E.2d 289).

According to the weight of authority, one of the most significant guides in classing a piece worker and an employee or an independent contractor is found in the answer to the question: does he conduct his own independent business or merely work in carrying on that of his employer. In Maryland Casualty Co. v. Kent (Tex.Civ.App.) 271 S.W. 929, 932, supra, it is said: "A contractor is any person who, in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and methods without submitting himself to their control in respect to all its details. The true test of a contractor would seem to be that he renders service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished."

That a piece worker uses the employer's equipment, standing as an isolated or independent fact, is indicative of but not conclusive as to whether he occupies as to his employer the relationship of an employee, and the fact that the employee uses his own equipment and motive power in performing services for his master does not give to him the status of an independent contractor. Ocean Accident c. Corp. v. Hodges, 34 Ga. App. 587 ( 130 S.E. 214).

Where the manufacturer of a commodity employs another, whether for a price per hour or by the piece, to perform a comparatively simple manual function in process of producing the commodity, the person engaged to render such service is usually classed as an employee and not as an independent contractor. Alexander-Bland Lumber Co. v. Jenkins, 87 Ga. App. 678, supra. Where such person is through experience, familiar with the detail of the work he is employed to do, and the contract of employment requires him to continually give such dispatch to his work as will prepare the commodity for manufacture in such quantities as will coordinate with other processes of production, the employer exercises all of the control of the details of his work necessary to classify him as an employee. In this connection refer to 99 C. J. S. 350, § 104; Industrial Commission v. Hammond, 77 Colo. 414 ( 236 P. 1006). In Lokey Simpson v. Hightower, 57 Ga. App. 577, 580 ( 196 S.E. 210), it is held: "In the present case, about the only thing that we find was left to the discretion of the claimant was as to how high from the ground each tree should be cut. But it can hardly be conceived that since the nature of his employment was merely the application of physical labor, and that since the defendant furnished him his tool, and directed him as to what trees to cut, that the defendant would not have had the right, and that it was impliedly so understood between them, to direct him to cut a tree in a manner other than he would have cut the same if the defendant thought that his manner or cutting would amount to a waste. It is true that it further appears that the claimant did not and was not required to work on the same schedule of hours as other employees of the defendant, and that he was at liberty to work at irregular hours. On the other hand the inference is clearly warranted that he could be required to work sufficient time to keep the mill supplied with logs for the purpose of cutting them into shingles. The mere fact that he did not have regular hours would not demand a finding, when taken in connection with the other facts of the case, that he was an independent contractor rather than a servant."

The rules of law just referred to are made peculiarly applicable to this case by portions of the employer Sudderth's testimony that Grady Sudderth and Wheeler, employed to fell the timber, and Winton Sudderth and Kendricks, employed to log the mill, knew how to do the work they were employed to do, and his further testimony in answer to questions propounded by the director, as follows: "Director: Well, I'm just trying to find out what their duties were. Now, Ralph and Grady, I believe, did the cutting of the timber? Witness: Yes, sir. Director: You bought the timber and you contracted with the owner of the land to cut it at six inches? Witness: Yes, sir. Director: Which gives you a two-by-four like you said? Witness: That's right. Director: Then you hired Grady and Ralph to cut it and they were told to cut it at six inches and they weren't supposed to cut anything else? Witness: Yes, sir. Director: And you paid them so much a thousand for that? Witness: Yes. Director: Then, I believe you stated that Winton and Gene would log the mill with your tractors? Witness: Yes, sir. Director: And to keep the mill going, they had to log it? Witness: Yes, sir. Director: Then this boy, I believe hauled the lumber from your mill on your truck and you paid him so much a thousand for hauling? Witness: Yes, sir."

Grady Sudderth testified in reference to the requirements that he and Wheeler fell the timber so as to coordinate with or keep pace with the other operations employed in the operation of the sawmill that they were required to keep ahead of loggers. The contracts of employment here dealt with required Grady Sudderth and Wheeler to fell the timber 6 inches from the ground and to keep pace with the loggers, and Winton Sudderth and Kendricks, the loggers, to log the mill so as to keep pace with the process of sawing the timber into lumber, and Billy Sudderth, as the lumber accumulated, to haul it to the place designated by the employer.

It will be noted that all of the equipment, sawmill, trucks, tractors, mule and other articles necessary to the mill except one lone chain saw were owned by the employer Sudderth. That saw was according to the evidence owned by Grady Sudderth and Ralph Wheeler, but they used the employer's equipment in trimming the tips and limbs from the trees.

The fact that the undisputed testimony showed that at times employees of E. W. Sudderth other than the Sudderth boys, Wheeler and Kendricks, worked in felling the timber and logging the mill indicated that all of the employees were engaged on the same basis and that none were independent contractors. There was evidence that some of those designated by the employer as independent contractors rendered other services in carrying on the sawmill operations generally. This was inconsistent with the relationship of employer and independent contractor. It is hard to conceive of a state of more complete control of the manner and time in which an employee performs his allotted work than the practice of the employer to shift him from a task of one nature to that of another, as the exigencies of the manufacturing process about which he is employed require. No fact could be more consistent with the relationship of employer and employee, or more repugnant to that of employer and independent contractor.

The employer on his own truck hauled to the sawmill gasoline which was used in the operation of machinery and trucks used by those he insisted were independent contractors. While he claimed that the gasoline was paid for by Winton Sudderth, Kendricks, and Billy Sudderth, some of it was admittedly used in starting his own sawmill. A small but significant fact — the proverbial feather in the wind, a circumstance properly considered by the triors of fact. No witness was produced to prove the gasoline was purchased by any of the alleged independent contractors, and the testimony showed that the employer had listed gasoline in his income tax as one of the expenses of his business. The provisions of Code § 38-119 are applicable.

The director may have inferred that a failure to produce impartial witnesses as to the purchase of the gasoline, indicated that if such witnesses were produced their evidence would be adverse to the employer's interest. There are still other facts of legal significance that would raise the inference that the relationship between the employer and all who worked at the mill and in connection with its operation, was that of employer and employee, and that the employer directed all of their work. This conclusion is supported by the fact that when the felling process lagged he sent employees to aid in that work, and when the logging fell behind he assigned his employees to assist in the dispatch of that work.

The employer testified that he had a time book at his home which would probably show the names of his employees on the day the claimant was injured, but failed to produce it. He professed to be confused as to what was demanded by a notice to produce which the claimant caused to be served upon him. There is a rule of evidence, "Where a party has evidence in his power and within his reach, by which he may repel a claim or charge against him, and omits to produce it, or, having more certain and satisfactory evidence in his power, relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded; but this presumption may be rebutted." Code § 38-119. The rule was clearly applicable to the situation shown by the record.

The court has carefully examined each of the authorities cited and relied on by the employer, and none requires a different holding than that here pronounced.

Poss Bros. Lumber Co. v. Haynie, 37 Ga. App. 60 ( 139 S.E. 127) is distinguishable on its facts from the instant case. There one man was engaged to carry on with his own labor the entire operation of a sawmill, including the felling of the timber, logging the mill, sawing the lumber and delivering the same. The work committed to him required executive skill and was not purely manual as in this case. The contract there was to carry on an independent business, a complete enterprise, not, as in this case, to perform physical functions in carrying on the employer's business. The same distinguishing features, and others, make 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) inapplicable to the facts of this case.

In Maryland Cas. Co. v. Radney, 37 Ga. App. 286, 288, supra, one was engaged to haul logs as he chose, when he chose and from where he chose, on his own truck and with his own motive power. In this case Billy Sudderth was employed to haul lumber from a place designated to a destination chosen by his employer, as the mill turned out the lumber, on the employer's truck, and under such circumstances that it was a questioned fact as to whether he or his employer really furnished the gasoline for the purpose. There were circumstances from which it could be inferred that he did.

Scott v. Minor, 55 Ga. App. 714 ( 191 S.E. 263) is not authority or even persuasive of a different view from that here stated. There as in Poss Bros. Lumber Co. v. Haynie, 37 Ga. App. 60, supra, the owner engaged another to operate a sawmill, at the latter's expense, and with his own labor. Complete control of the whole sawmill was left to the operator's judgment even to the dimension in which the lumber was sawed. He performed no mere physical function connected with his employer's business, as is true in this case, but performed a service productive of an ultimate result.

The same reasoning is applicable to the case of Banks v. Ellijay Lumber Co., 59 Ga. App. 270, 273 ( 200 S.E. 480).

In none of the cases cited by the employer were elements of control and supervision present as in the instant case, and in all of them the work required was that which produced an end result, rather than a service which was a mere manual function to be performed in carrying on the employer's business.

There was ample competent evidence to support, if it did not demand, the finding that all of the workers employed in the employer's sawmill business occupied the relationship to him of employer and employee, and hence he employed as many as ten employees in that business.

The trial judge erred in setting aside the award of the Workmen's Compensation Board.

Judgment reversed. Felton, C. J., and Quillian, J., concur.