57 Ga. App. 577 | Ga. Ct. App. | 1938
Lead Opinion
The Department of Industrial Eelations awarded compensation to Willie Hightower, against Lokey & Simpson as employer. The defendant ezcepts to the judgment of the judge of the superior court on appeal, affirming the award made by the department. Counsel for both parties agree that the only question for decision is whether the evidence introduced authorized the finding that the claimant was an employee of the defendant. The defendant contends that the claimant was not an employee but an independent contractor, and that the evidence authorized no other finding. It appears from the evidence that Lokey & Simpson, a partnership composed of Leonard Lokey and E. M. Simpson, was engaged in the sawmill business. The claimant was employed by the defendant as a servant, but shortly before his injury he had a misunderstanding with Lokey and was discharged. Several days later, Simpson contracted with him to cut trees down on a certain tract of land, his compensation to be so much per thousand feet. Simpson, on behalf of the defendant, testified: “I made a trade; with Willie Hightower to cut a certain tract of timber out on the Gun place at so much a thousand feet and he employ his own help. . . Willie made a contract with me and I can tell you the proposition I made. I said I would give him forty cents a thousand if he used certain tools we had, but I would give him
In Durham Land Co. v. Kilgore, 56 Ga. App. 785 (194 S. E. 49), it was said: '“If the employer has or assumes the right under the contract to control and direct how the work shall be done, that is to say, it the employer has or assumes the right under the contract to control the manner in which the details of the work are to be executed, as distinguished from the mere right to superintend it so that the desired results are obtained, the relationship is that of master and servant. If, on the other hand, the employer has or assumes only the right under the contract to superintend the work to the end that the desired results so contracted for are obtained, and does not have or assume the right under the contract to control the manner in which it is done, which right is vested in the contractor, the relationship is that of employer and independent contractor. Thus it has been said that where a contract is entered into, providing for the execution of a specific kind or piece of work for a stated compensation, ‘the test to be applied in determining whether the relationship of the parties under’ the ‘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.’ Yearwood v. Peabody, 45 Ga. App. 451 (2) (164 S. E. 901). See also Bentley v. Jones, 48 Ga. App. 487 (173 S. E. 737) and cit.”
Settling all conflicts in the evidence in favor of the claimant, as the director has done, it would appear that the defendant employed the claimant, together with another, to fell trees on a certain tract of land, and to saw them into stated lengths; that his compensa
Judgment affirmed.
Dissenting Opinion
dissenting. This is a “compensation” case in which compensation was awarded to Hightower, the claimant; and the award 'of the Department of Industrial Relations was affirmed by the judge of the superior court. It is agreed by counsel for both'parties that the only question to be determined by this court is whether the claimant was a servant or employee of Lokey & Simpson, the plaintiff in error, or an independent contractor. As said by this court in Home Accident Ins. Co. v. Daniels, 42 Ga. App. 648 (2) (157 S. E. 245) : “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 &c. Ins. Co. v. Lee, 36 Ga. App. 248 (136 S. E. 173).” (Italics mine.') In the Daniels case, supra ““it appeared that the claimant was engaged in cutting and hauling logs to a sawmill under a contract by which he was paid so much per thousand feet, and paid his own help, and where the claimant testified that the employer deducted a. certain percentage of his compensation for insurance; that the employer “would show me what to cut, and pick out the pines and show me ’ that the employer sent him orders “how to cut logs;’ and would “show us in the woods where to go;’ and where the evidence indicated that under the contract the employer furnished a portion of the equip
Hnder the above-stated evidence, the fact that Lokey & Simpson furnished their own tools for Hightower’s work fails to show that Hightower was not an independent contractor. Zurich General Accident &c. Ins. Co. v. Lee, supra, headnote 2 (c). It is true that Lokey & Simpson testified that Hightower hired his own helper, and that Hightower swore that his helper was not hired