99 Ga. App. 133 | Ga. Ct. App. | 1959
The original claim in thi-s workmen’s compensation case was filed against Sidney Clein Jewelry & Optical Company, Inc. Pending the disposition of the claim before the deputy director, Mrs. Rose Clein intervened and made a motion to style the case as “Mrs. Rose Clein amid/or Sidney Clein Jewelry & Optical Company.” The record before this court discloses that the law firm of Carpenter, Karp and Mathews represented Sidney Clein Jewelry & Optical Company, Inc., and also represented Mrs. Rose Clein, various pleadings,
“Where a bill of exceptions which can be identified as excepting to a specific judgment shall be served upon counsel of record in the case, such service shall be held to bind all parties whom said counsel represented in the trial court. . .” Code § 6-912. “When the record shows clearly who were parties to the litigation in the court below, the writ of error shall not be dismissed because the-bill of exceptions fails to specify or designate the parties plaintiff in error or defendant in error, and if it shall appear while the case is pending in the appellate court that a necessaiy party has not been named in the bill of exceptions or properly served, and where no acknowledgment of service binding upon such party has been entered, the appellate court shall, by proper order, require that all necessary parties as shown by the record be served with a copy of the bill of exceptions.” Code (Ann.) § 6-1202. In view of the state of the record in this case, and under the provisions of law- quoted above, Rose Clein was a necessary party defendant in error in the bill of exceptions and she should have been named therein. However, since service was acknowledged by her attorney of record, no order of service or further action on the part of this court beyond merely amending the bill of exceptions and the record here to show Rose Clein as a party defendant in error will be taken. The motion to dismiss the writ of error is denied. See Powell v. Young, 56 Ga. App. 613 (1) (193 6. E. 358).
Counsel for the claimant filed in the superior court a motion to dismiss the appeal of the employer. The basis of the motion, was that the questions sought to be adjudicated on the
The evidence showed, and the full board in its award granting compensation to the claimant found, that the employer in this case was Rose Clein. The evidence further showed that there was no connection between Rose Clein’s business activities and those of Sidney Clein Jewelry & Optical Company, Inc., which was a corporation. Mrs. Rose Clein owned some stock in the corporation, and the balance of the stock was held by her husband, Sidney Clein. Mrs. Clein owned a building at 132 Whitehall St., S. W., Atlanta, Georgia, which she was having remodeled so that she could establish therein a separate business venture of her own. She employed Charles Q. Strickland to supervise the remodeling job. Strickland employed four or five laborers, including the plaintiff, and kept a time sheet and payroll on those employees who were paid by Mrs. Clein directly. The claimant testified that there were more than ten persons working on the job while he was working there, but he was unable to testify and did not testify that all of the, persons
“The pro-visions of the Workmen’s Compensation Act aré inapplicable to employers having fewer than ten, persons regularly employed in the same business in which the employee suffers an injury arising out of and in the course of employment. Code § 114-107. Under the teams of the . . . [Workmen’s Compensation Act], it is not permissible, in order to ascertain whether ten or more persons are regularly employed, to add the total number of employees of two or more separate businesses. . .” Butler v. Lee, 97 Ga. App. 184 (2) (102 S. E. 2d 498). Under the foregoing rules of law, since the uncontradicted evidence showed that the only employees directly under the supervision and control of Mrs. Clein were the five or six carried on the payroll and time book maintained by Mr. Strickland, and that the other persons working on the job' were employees of independent contractors over whom Mr. Strickland and Mrs. Clein had no right of control as to the time, manner and method o-f their executing the work, and over whom they did not, in fact, exercise any such control (Adams v. Glens Falls Indemnity Co., 58 Ga. App. 663, 665, 199 S. E. 783), the findings of the full board that Mrs. Clein had in her employ more than ten persons and that she was, therefore, subject to the Workmen’s Compensation Act, were unauthorized by the evidence, and the judge of the superior court did not err in reversing the award of the full board arad in directing the bo-ard to enter an award denying compensation.
Judgment affirmed.