100 Ga. App. 860 | Ga. Ct. App. | 1959
Lead Opinion
The claimant, John P. Hernlen, was an employee of a proprietorship operated by his father under the name of “Wirtz and Hernlen.” The claimant’s father died, and under the provisions of his will the claimant and his brother, Geddes Hernlen, were made trustees of the estate and expressly empowered as such to continue the operation of
Under the facts stated and under the provisions of Code § 114-607, the defendant insurance company was estopped to contend that the claimant was not an employee of the proprietorship and entitled to workmen’s compensation when he sustained an injury arising out of and in the course of his employment. Pasler v. Maryland Cas. Co., 97 Ga. App. 263, 265 (103 S. E. 2d 90). It follows that-the judge of the superior court did not err in affirming the award of compensation to the claimant.
Judgment affirmed.
Rehearing
On Motion for Rehearing
In a motion for a rehearing filed in this court, counsel for the plaintiff in error makes the contention that John P. Hemlen, the claimant, cannot be both the employer and the employee at one and the same time. In making this contention, counsel overlooks the fact that while Hemlen was in fact one of the trastees of his father’s estate that as such he managed the estate merely in a representative capacity. Under the facts shown in the
The analogy would not be strained to compare the case here made with a case supposed, where the creator of the trust had, instead of making merely his two sons trustees of the estate, constituted all of the employees of his business as a board of trustees to operate and continue the business for the benefit of his widow. Under such a circumstance, it cannot be said that the employees would all thus become individúally partners in the operation of the business so that they could no longer continue to be employees of the business within the meaning of the Workmen’s Compensation Act. Under the facts appearing in the instant case, the creator of the trust knew that his sons were employees of his business, and we think it may be fairly inferred that-he intended that they would continue as such while acting as trustees in a fiduciary or representative capacity to operate the business. Thus, the trustees here acted in their representative capacity in managing the business for the benefit of their mother and in their individual capacity as employees of the business.
No question is presented by the record in this workmen’s compensation case as to the propriety or impropriety of this kind of “self-dealing.” See, however, in this connection 90 C. J. S. 255, n. 34, Trusts, § 248.
Motion for rehearing denied.