Opinion
38471.
DECIDED DECEMBER 1, 1960.
Workmen's compensation. Camden Superior Court. Before Judge Thomas. May 20, 1960.
Bennett, Pedrick Bennett, John W. Bennett, for plaintiffs in error.
Charles H. Hyatt, James M. Newsom, Thomas, Howard Moran, Hubert H. Howard, contra.
The finding and award of the State Board of Workmen's Compensation in favor of the claimant was authorized by competent evidence, and the superior court did not err in affirming it.
DECIDED DECEMBER 1, 1960.
Mrs. Clarence Moates as the widow of Clarence Moates filed a claim for workmen's compensation against the H. J. Williams Lumber Company and its carrier, the Travelers Insurance Company. The claim was contested by the company and the carrier on the ground that the claimant's decedent was not an employee of the lumber company but was an employee of Vernon Guthrie, who occupied the relationship of an independent contractor toward the company.
Briefly, the evidence adduced at the hearing before the deputy director disclosed the following material facts: In 1956, the defendant lumber company entered into a contract for a period of five years to sell wood chips, a waste by-product of its lumber operation, to the St. Mary's Craft Paper Corporation. The contract provided for delivery of the chips to the paper company's manufacturing plant in Camden County with the lumber company to receive a stated price per cord for the chips plus the prevailing freight rate for delivery. In January, 1957, Horace Williams, Jr., president and general manager of the lumber company, employed Vernon Guthrie to haul the wood chips to the paper company. As to the contract between them, Mr. Williams testified that Guthrie owned the trucks; that he was to haul the chips from the chip bin located in the lumber company's yard at Nashville, Georgia, to St. Mary's, Georgia; and that he was to be paid the freight rate allowed under the contract with the paper company. He further testified that the payments were made through the lumber company; that the chips were to be hauled as they became available; and that if Guthrie did not keep the chips hauled out or do his job properly a new man would be hired. Mr. Vernon Guthrie testified in substance that under the hauling contract he was to furnish the trucks, the drivers, the trailers, the equipment and to bear all expenses of transporting the chips for which he would be paid the freight allowed for such transportation. He further testified that it was his responsibility to load the trucks at the chip bin located in the lumber company's yard; that he hired the drivers, including the decedent Clarence Moates, and paid them; that he alone had the right to fire them; and that neither Mr. Williams nor anyone connected with the lumber company had authority over his drivers and never gave them any directions concerning the carrying out of the hauling contract.
Other evidence adduced at the hearing disclosed that the truck which the decedent was driving at the time he was killed was registered in the name of the lumber company and a tag registration slip so stating was found among the effects of the deceased; that the lumber company had secured a motor fuel tax number from the Revenue Department of the State of Georgia for the purpose of fuel tax exemption on said truck; that until several months prior to the death of the decedent the lumber company had deducted insurance premiums on the life of Clarence Moates from the amount of money paid to Vernon Guthrie; that after Clarence Moates was killed, Horace Williams, Jr., made arrangements for the funeral of the decedent and agreed to stand behind Vernon Guthrie for the purpose of paying same; and that a Mr. Wade formerly operated under the same purported agreement that Vernon Guthrie was operating under and that when Mr. Wade became unsatisfactory he was discharged and Mr. Guthrie was hired.
The Deputy Director found in favor of the claimant and on appeal to the full board the award was affirmed. This award was appealed to the Superior Court of Camden County. To its judgment affirming the award of the full board the lumber company and its insurer except.
The sole question for decision in this case is whether there was sufficient competent evidence to sustain the finding and conclusion of the deputy director that Vernon Guthrie, the person under whom the claimant's decedent was working, occupied the relation of an employee rather than that of an independent contractor toward the alleged employer, H. J. Williams Lumber Company, and that consequently the claimant's decedent was an employee of the H. J. Williams Lumber Company.
As pointed out by Judge Jenkins in Liberty Lumber Co. v. Silas, 49 Ga. App. 262 (2) ( 175 S.E. 265): "In claims for compensation under the Workmen's Compensation Act, where the question is whether the injured person, or the person under whom he was working, occupied the relation of an employee or of an independent contractor toward the alleged employer, the line of demarkation is often so close that each case must be determined upon its own particular facts."
However, there are certain basic rules which govern in this determination. One such rule is that any doubt is to be resolved in favor of the existence of the employer-employee relationship rather than the employer-independent contractor relationship. Liberty Mutual Ins. Co. v. Henry, 56 Ga. App. 868 ( 194 S.E. 430). As stated in Cash v. American Surety Co., 101 Ga. App. 379, 381 ( 114 S.E.2d 57): "This means simply that, while the claimant is at all times cast with the burden of proof, the evidence offered will, so far as it is genuinely susceptible of construction, be given that construction which is in his favor in determining whether he has carried that burden by a preponderance of the evidence."
The chief test to be applied in determining whether the relationship of the parties under a contract for the performance of service is that of employer and employee, or that of employer and independent contractor, lies in 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. Home Accident Ins. Co. v. Daniels, 42 Ga. App. 648 ( 157 S.E. 245). It is of no consequence, however, that the employer did not exercise this right to control the time and manner of the contract performance. Old Republic Ins. Co. v. Pruitt, 95 Ga. App. 235 ( 97 S.E.2d 521).
Where the question of control is not discussed at the time the service is engaged, and where it never arises during performance, it is often exceedingly difficult to determine whether the employer had, or intended to reserve, such right. However, it has been held in a number of decisions that 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. Mitchem v. Shearman Concrete Pipe Co., 45 Ga. App. 809 (11) ( 165 S.E. 889); Continental Cas. Co. v. Payne, 56 Ga. App. 873 (1) ( 194 S.E. 428); Campbell v. Travelers Ins. Co., 100 Ga. App. 853 ( 112 S.E.2d 311); Asbury v. Public Service Mutual Ins. Co., 101 Ga. App. 283 ( 114 S.E.2d 40); Malcom v. Sudderth, 98 Ga. App. 674, 687 ( 106 S.E.2d 367); Cash v. American Surety Co., 101 Ga. App. 379, supra.
It has also been held that, "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. [99 C. J. S. 342, § 99 (55)]." Campbell v. Travelers Ins. Co., 100 Ga. App. 853 (3), supra; Malcom v. Sudderth, 98 Ga. App. 674, 686, supra.
Under the principles cited above, and considering the entire evidence, it cannot be held that the finding of the board in this case that Guthrie, the person for whom the deceased employee was working, occupied the relation of employee rather than that of independent contractor toward the company, was without supporting evidence. Although there was undisputed testimony that Guthrie had orally contracted with the company to haul the wood chips to the paper company at the rate per cord which the paper company was to pay the employer company, that he was to furnish the necessary trucks and equipment, and that he hired, discharged, directed and paid the employees working under him, the evidence disclosed that the oral agreement provided merely for compensation on a quantitative basis according to prevailing freight rates, fixed no time for its termination, and did not expressly specify anything as to the manner or method of its execution, but that the work load under the agreement was geared to the company's weekly production, and that the employer company retained the right to discharge Guthrie if he did not meet this production, and if he did not properly perform his services.
Accordingly, the evidence adduced on the hearing before the deputy director authorized the inference that the relationship between the lumber company and Guthrie was that of employer and employee and that the claimant's decedent, who was a truck driver working under the control of Guthrie, was a servant of the employer; and as such the claimant was entitled to compensation against the employer and insurance carrier for the death of her husband, which, as stipulated by the parties arose out of and in the course of his employment. The trial judge did not err in affirming the award of compensation.
Judgment affirmed. Townsend, P. J., Carlisle and Frankum, JJ., concur.