Summary
affirming finding that claimant was not free from control or direction where the employer supplied the materials, supervised work, could discharge the claimant at will, and paid the claimant only for his labor
Summary of this case from Sky King 101, LLC v. ThurmondOpinion
36519.
DECIDED FEBRUARY 27, 1957. REHEARING DENIED MARCH 13, 1957.
Affidavit of illegality. Before Judge McGehee. Fayette Superior Court. October 27, 1956.
Stanley P. Meyerson, Johnson, Hatcher Meyerson, for plaintiff in error.
Otis L. Hathcock, contra.
The trial judge did not err in denying the motion for new trial.
DECIDED FEBRUARY 27, 1957 — REHEARING DENIED MARCH 13, 1957.
A tax execution was issued by T. V. Williams, Commissioner of Revenue, for use of Ben T. Huiet as Commissioner of Labor, against R. S. Moore, covering unemployment compensation tax due the State of Georgia by Moore as an employer under the terms of the Georgia Employment Security Law. The tax execution was levied on certain personal property of the defendant in fi. fa., and he gave bond. The defendant then filed an affidavit of illegality in which he alleged that he had not employed more than eight workers during the time in question and, therefore, was not subject to the law or liable for any amount for unemployment compensation tax.
On the trial the defendant testified in part that: He was engaged in the house-building business; he had certain men on his payroll as clean-up men; there were also one or two carpenters hired to check the houses and fix anything they found wrong; he "supervised construction to see if they were built right"; he had a man hired by the hour to lay the foundations; P. A. Turner was paid $250 to frame the houses; he paid him each week according to his progress; he helped P. A. Turner build the first house and showed him what he wanted; he "stayed there with him when he built one and then turned him loose with the other one"; he bought all the materials that P. A. Turner used because he could get them on a discount; he never supervised P. A. Turner's hired men directly; he did not have any agreement with P. A. Turner that he could hire or fire his men; Turner worked from four to six men; J. D. Turner was a trim man: he paid J. D. Turner $65 to trim out a house; J. D. Turner furnished his own tools; he furnished the materials which J. D. Turner used; that he did not have to tell J. D. Turner what to do because he knew what was to be done; as to whether he supervised his work, he "didn't see him half the time"; he had no understanding with Turner that he could hire and fire his men; as to B. H. Lee he contracted with him each time to do the plumbing; he bought the plumbing and furnished it to Lee; Lee furnished his own tools; the city inspected the plumbing; he and P. A. and J. D. Turner also inspected the houses; he went over the plumbing with him the first time; "after the first house had been established the rest of them were just like it"; the lathing and plastering were done by men who were paid by the hour; the roofing man was paid so much a square for putting it on; the roofing man furnished his own tools; the wiring was done by Price Electric Company; Price bought the wiring but that was added to the price of the house; the painting was done by men who worked by the hour; he had other people besides his own employees to do the work because he did not want to have to hire a foreman and he did not have time to watch their work close enough without a foreman; that he paid these individuals by the job.
The judge, sitting in lieu of a jury, found for the plaintiff. The defendant made a motion for new trial which was denied. The defendant excepted, and the case is here for review.
The defendant insists that he was not liable for the tax because the individuals who performed the services were independent contractors and not his employees. "It makes no difference whether the relationship between the parties was one of employer-employee or the `dealers' were independent contractors. The test, and the question here for decision, is whether the status between the parties falls within the meaning of employment as defined by the act. Young v. Bureau of Unemployment Comp., 63 Ga. App. 130, 137 ( 10 S.E.2d 412)." McNeel, Inc. v. Redwine, 90 Ga. App. 345, 347 ( 83 S.E.2d 33).
The defendant in fi. fa. is without question an "employing unit" paying "wages" to his employees. Code § 54-657 (f), (h), (v). The sole question remaining in this case is whether the parties in question were employees within the meaning of Code § 54-657. In subsection (h) (6) of Code (Ann. Supp.) § 54-657, it is provided: "Services performed by an individual for wages shall be deemed to be employment subject to this Chapter unless and until it is shown to the satisfaction of the Commissioner [of Labor] that: (A) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and (B) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and (C) Such individual is customarily engaged in an independently established trade, occupation, profession or business." The Commissioner in the present case treated the individuals as coming under the act, and the burden of proof then fell on the defendant to prove that the individuals' services came within the exceptions of Code § 54-657, subsec. (h) (6). To avoid the payment of the unemployment compensation the defendant must prove that the individuals in this case fall within the classes of those indicated under (A), (B) and (C), of the above section, conjunctively. Benton Rapid Express v. Redwine, 87 Ga. App. 584 ( 74 S.E.2d 504); Redwine v. Refrigerated Transport Co., 90 Ga. App. 784 (1) ( 84 S.E.2d 478). Subsection (A) provides that an individual who works for wages is deemed subject to the act unless he has been and will continue to be free from control or direction over the performance of his services, both under his contract of service and in fact. In the present case there was sufficient evidence from which a jury, in this case the judge sitting in lieu of a jury, could have concluded that the defendant supervised the erection of the first house; that the individuals in question could have been discharged at any time; that the defendant bought the materials and only paid the individuals for their labor. And he would be further authorized to conclude from these findings that the individuals in question were not free from the control and direction of the defendant. There was also evidence which would have authorized the judge to conclude that the services performed by these individuals were not outside the usual course of the business for which such services were performed. Either finding would prevent the services performed by the individuals from falling within the exceptions listed in Sections (A), (B) and (C) of the act. The trial judge did not err in denying the motion for new trial.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.