53 Ga. App. 137 | Ga. Ct. App. | 1936
The exception here is to the judgment rendered by the Honorable James C. Davis, Judge of the superior court of Newton County, affirming an award of the Department of Industrial Relations in favor of Mrs. Susie Martin individually, Mrs. Susie Martin for the use of Samuel G. Martin, and Samuel G. Martin, against Bibb Manufacturing Company. The controlling question in the case is whether or not at the time E. G. Martin, the husband of Mrs. Susie Martin and the father of Samuel G. Martin, was accidentally injured in the course of his employment with Bibb Manufacturing Company, he was a mere employee of that company or an independent contractor.
Mrs. E. G. Martin testified in substance that E. G. Martin was working for Bibb Manufacturing Company at Porterdale when he was injured on March 20, 1934; that he died the following day; that he received each week envelopes made out in favor of the men that were employed by him, in favor of Martin, pud in favor of the teams and trucks; that Martin was paid $4 a day; that he was using “mostly” his farm hands at Bibb Manufacturing Company, and a few that were not farm hands; that she didn’t know what his hands were being paid, but thought Martin was paid $4 a day for his teams and trucks; that for the past several years Martin’s general business had been dairying and farming, and that he had been a contractor; that “the teams he was using at Bibb were also used on the farm,” and that “the trucks were partly bought for his contract at Porterdale.”
Samuel G. Martin testified in effect that his father, E. G.'Martin, “was foreman of that job out there for the Bibb;” that he “hired the men that were working with him;” that he was killed while “hauling machinery from the box cars to the mill;” that witness
J. O. Porter testified in substance that he was in charge of the Porterdale Mill for Bibb Manufacturing Company; that “his interpretation of Martin’s business was that he was a farmer and contractor;” that for some time Martin had been contracting with Bibb Manufacturing .Company to perform various sorts of work, and with others; that Martin said that he could not finan.ce the contract in question, and witness agreed to “pay him a stipulated sum per hour for himself, a stipulated sum for his trucks and teams, and a stipulated sum for the operatives that he worked,” Martin “to do the grading at the Osprey Mills for the new addition, empty cars for whatever material that came in, and place this material in the places that were designated by the construction crew;” that the total amount paid Martin under this contract represented “the cost of the construction so far as the Bibb Manufacturing Company was concerned;” that “payment was worked out on a basis of pay-rolls that he turned in to us each week;” that Bibb Manufacturing Company never hired any of the men working for Martin, or any of the trucks or teams that he used, and never paid any of said men; that payment of the employees was left entirely up to Martin; that Martin had no special time to work,
Eight “pay-roll sheets” were introduced in evidence. They are similar in form, and a description of the one for the week ending March 17, 1934, sufficiently indicates the nature of the others. It was headed “pay-roll sheet.” At the top of the left side of the sheet appear the words “ Construction Crew Dept.” Under these words, and across the sheet, the following is typewritten: “Excavating, Hauling, & Unloading Material, Helping Carpenters & Brick Masons.” Under those words on the left side of the sheet the word “Foreman” is typewritten. Immediately under that word is the name “E. G. Martin.” To the right of Martin’s name is the letter “A” (which appears from a printed statement on the left margin of the sheet to mean “white” and “male”), the days on which Martin worked, the number of his working hours (9), his rate of pay (40 cents an hour), and the amount due him ($3.60). Below Martin’s name the heading “Laborers” is typewritten, and under that word appear the names of eight persons designated by the letter “C” (meaning “colored” and “male”). Opposite each laborer’s name appear the days on which he worked, the hours worked by him, and his wages. Immediately under the name of the last laborer is the typewritten heading “ Teams.” Under that word appear four names, designated by the letter “C” as being “colored” and “male.” The days and hours worked by each team are set out as stated above, and the rate of pay for each team is given as 40 cents.
The “Employer’s First Report of Injury” states: “Mr. Martin
“Under the Georgia statute and decisions, the test to be applied in determining whether the relationship of the parties under a contract for the performance of labor is that of employer and servant, 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. Zurich General Accident & Liability Ins. Co. v. Lee, 36 Ga. App. 248 (136 S. E. 173); Quinan v. Standard Fuel Supply Co., 25 Ga. App. 47 (102 S. E. 543); Mount v. Southern Ry. Co., 42 Ga. App. 546, 550 (156 S. E. 701); Home Accident Ins. Co. v. Daniels, 42 Ga. App. 648 (2) (157 S. E. 245); Irving v. Home Accident Ins. Co., 36 Ga. App. 551 (137 S. E. 105).” Yearwood v. Peabody, 45 Ga. App. 451 (2) (164 S. E. 901). In Liberty Lumber Co. v. Silas, 49 Ga. App. 262 (2) (175 S. E. 265), the foregoing rule was referred to as the “ chief test,” and was quoted and followed. In addition to some of the authorities cited in the Yearwood case, this last case cites as authority for the rule Cooper v. Dixie Construction Co., 45 Ga. App. 420 (2) (165 S. E. 152); Poss Lumber Co. v. Haynie, 37 Ga. App. 60 (2) (139 S. E. 127). This principle is fully discussed, and authorities cited, in Bentley v. Jones, 48 Ga. App. 587 (173 S. E. 737). We will supplement the evidence already set out, by stating that it appears that E. G. Martin began working at the Osprey Mills under his contract with Bibb Manufacturing Company sometime in January, 1934, and that his son swore that he thought it took him one or two weeks to complete the work. Measuring this case by the rule hereinbefore stated, we are of the opinion that E. G. Martin was not the servant of Bibb Manufacturing Company, but was an independent contractor. We therefore hold that the judge erred in affirming the award of the Department of Industrial Belations.
Judgment reversed.