Opinion
43284, 43285.
ARGUED JANUARY 3, 1968.
DECIDED APRIL 2, 1968.
Workmen's compensation. Burke Superior Court. Before Judge Kennedy.
Woodruff, Savell, Lane Williams, John M. Williams, Lawson A. Cox, for appellant.
Albert G. Ingram, W. T. Mobley, for appellees.
1. The relationship of employer and employee is essential to coverage under the Workmen's Compensation Act. Parker v. Travelers Ins. Co., 174 Ga. 525 ( 163 S.E. 159, 81 ALR 472). Common law principles are to be employed in determining whether the relationship existed. Travelers Ins. Co. v. Clark, 58 Ga. App. 115, 121 ( 197 S.E. 650). If the relationship is that of independent contractor and contractee there is no coverage. Richards v. Marco Realty Co., 57 Ga. App. 242 ( 194 S.E. 880); American Cas. Co. v. Smith, 116 Ga. App. 332 (2) ( 157 S.E.2d 312). The burden of showing the employer-employee relationship and of showing that the employer was subject to the provisions of the Act by virtue of having the requisite number of employees or that he had voluntarily accepted its provisions rests upon the claimant. Indemnity Ins. Co. v. Lamb, 56 Ga. App. 492 ( 193 S.E. 76). Cf. McCluskey v. American Oil Co., 224 Ga. 252; Borochoff v. Fowler, 98 Ga. App. 411 (1) ( 105 S.E.2d 764).
"It appearing conclusively from the evidence that the employer neither reserved in the contract nor assumed the right to control the time, manner, and method of executing the work, the judge of the superior court erred in affirming the award of the [Workmen's Compensation Board.]" Bibb Mfg. Co. v. Martin, 53 Ga. App. 137 ( 185 S.E. 137). See Albert v. Hudson, 49 Ga. App. 636 ( 176 S.E. 659); Hartford Acc. c. Co. v. Parsley, 113 Ga. App. 830 ( 149 S.E.2d 848), and compare National Trailer Convoy v. Undercofler, 109 Ga. App. 703, 709 (a) ( 137 S.E.2d 328).
2. Even if the provision of the leases providing control of the James vehicles to Sanders, and the further provision obligating Sanders to pay the drivers was sufficient to afford a right to control those drivers and thus bring them within the category of employees under the Act, it must further appear that Sanders had ten or more employees in order to afford coverage. Code Ann. § 114-107. These must be employees regularly in service and of the character entitled to compensation under the Act. It cannot include a partner, though the partner may do work for which he receives compensation in the nature of wages. U.S. Fidel. c. Co. v. Neal, 188 Ga. 105 ( 3 S.E.2d 80); s.c., 60 Ga. App. 179 ( 3 S.E.2d 211); Chandler v. Harris, 47 Ga. App. 535 ( 171 S.E. 174). Nor can the president or others in the management of a corporate employer whose duties are those of management be counted; these are in the position of employers. But see Pasler v. Maryland Cas. Co., 97 Ga. App. 263 ( 103 S.E.2d 90); Home Indemnity Co. v. Hernlen, 100 Ga. App. 860 ( 112 S.E.2d 409).
There is no presumption that an employer has a sufficient number of employees to bring him under the provisions of the Act. Benefield v. McDonough Const. Co., 106 Ga. App. 194, 198 (3) ( 126 S.E.2d 704). Where, as here, the evidence fails to show that the employer had as many as ten employees (even counting James, Napier and Strange, but see Albert v. Hudson, 49 Ga. App. 636, supra, and other cases cited in Division 1) a finding that the parties came within the coverage of the Act was unauthorized. Watson v. Tifton Trading Co., 70 Ga. App. 377 ( 28 S.E.2d 188).
Judgments reversed. Felton, C.J., and Whitman, J., concur.
ARGUED JANUARY 3, 1968 — DECIDED APRIL 2, 1968.
W. H. James owned two trucks which he leased to Sanders Truck Transportation Company to be used in the hauling of freight (brick for the most part) under a permit which Sanders held from Interstate Commerce Commission. The lease agreement provided that Sanders was to have exclusive possession and control of the equipment, and would pay the driver, who was to be one qualified to operate the vehicle under provisions of ICC regulations, and would maintain it in good condition and furnish all gasoline, oil, tires and repairs necessary for its operation. Sanders provided the authority of its ICC permit, insurance, made the necessary reports to ICC of the trips and freight hauled, collected the charges from the shipper and paid over to James for the use of his truck 87 percent of the gross revenue which it produced. The driver was not in fact paid by Sanders, but by James, and was never on Sanders' payroll.
James employed Napier as a driver who, in turn, provided to Sanders a medical report from his own doctor relative to his health and physical condition to comply with ICC requirements. Napier was paid by James $20 per trip for each load hauled, and Napier in turn employed Strange at $5 per trip to help him in loading and unloading. Both were injured when the truck was wrecked in a collision while on a trip to deliver a load of brick.
On the matter of employment and supervision or control it appeared from the evidence: James testified that he employed and paid Napier and that he could fire him, (as did Napier himself); he did not employ Strange; Napier testified that he employed and paid Strange, whom he could fire, as did Strange, and neither was ever paid anything by Sanders Truck Transportation Company. Napier was free to do his own loading and unloading, or to employ whomever he pleased at such rate of pay as they might agree upon; Mr. Sanders, an official of that company, testified that neither was ever on its payroll and that neither was ever in its employ.
The freight hauled was brick, and these were picked up at the plants of Merry Brothers or the Georgia-Carolina Company. Napier would usually drive to one of these plants, load up from its yard, obtain a bill of lading or manifest indicating the destination of the load, deliver it and on return deliver the consignee's receipt and a copy of the bill of lading, though sometimes he went first to the office of Sanders to ascertain whether there was a load to be hauled and, if so, for whom, and Napier was instructed by Mrs. Phillips, in Sanders' office, to go to Merry Brothers or to Georgia-Carolina where there would be a load for hauling. She gave no instruction as to where it was to go — that would be done by the shipper. Napier was free to choose the time when he would make the trip, the route he would go, when and where he would stop, but under ICC regulations he was required to and did keep and turn in a daily log on each trip made. If he made a trip he would be paid by Mr. James; if he did not, he earned and was paid nothing. Sanders accounted to James for his share of the gross receipts under the terms of the lease, out of which he paid the expense of making the trips, including Napier's pay.
On the matter of how many employees Sanders had, Mr. O'Neal Sanders testified that Sanders Truck Transportation Company, Inc. was a family corporation of which his father was president until his death in December 1964, and that his father had been in general charge of the management of the business up until his death. At the time of the accident in which claimants were injured in August 1964, the company had five employees. Of these, four were truck drivers, and there was Mrs. Phillips who worked in the office. Quarterly returns of wage payments were made both to the State and Federal governments on these employees. Mr. Phillips, who was an employee of Merry Brothers, did some work for the Sanders Company, including some truck driving, but prior to January 1, 1965, he was never an employee or on the payroll. He had been a partner in the business with the corporation, taking a percentage of the net profit, and that was reflected by the company income tax returns. Although the company owned five trucks or tractors, and had some eight "flats" or beds to be pulled by the tractors, on which cotton and the like were hauled, they never had more than the four drivers as employees. There were four or five trucks under lease, including two from Mr. James, but except for the James truck operated by Napier they were all operated by the owner and none of the owners were employed by or on the Sanders payroll. (Leases on trucks other than the James vehicles were not called for, or placed in evidence and the provisions of those leases are not known).
Mr. Napier testified that he had only seen three or four drivers and Mrs. Phillips. He knew of no other employees that Sanders had. He was not an employee, but worked for himself.
The appeal is from a judgment of the superior court affirming an award of compensation by the full board.