24 S.E.2d 732 | Ga. Ct. App. | 1943
The evidence supported the award of the Industrial Board in favor of the partial dependents, and the record discloses no cause for reversing the judgment affirming the award.
Frederick Duhart was killed while riding on one of the defendant's trucks driven by J. E. Brantley, when the truck collided with an automobile. The defendant was engaged in the business of selling milk, and owned four trucks in which milk was delivered daily to its customers in the City of Macon. These trucks were kept at the defendant's plant, and each truck had a driver who came to the plant early every morning to get the milk and deliver it to customers on whatever route the defendant instructed him to cover. The defendant furnished gasoline and oil for the trucks, and checked the gasoline consumption of each truck "to tell just how" the driver of the truck was "running his route." The defendant employed J. E. Brantley to drive one of these trucks, and paid him ten per cent. of the money collected by him for cash sales and on credit sales made to such customers as the defendant instructed him to credit. Brantley turned in to the defendant each night the proceeds of the milk sales for that day, and was paid his commissions at the end of each week. Brantley "signed for" the milk each morning that was loaded on his truck. Brantley was responsible for any sales made by him on credit, unless the defendant authorized him to make such sales. He reported to the defendant's plant at 2:30 o'clock each morning for work. The truck-drivers were required to have their trucks back at the plant each night at eight o'clock. It was customary for the drivers of the trucks to carry with them boys to deliver the milk, and Brantley had two negro boys on his truck to make deliveries of the milk. One of those boys was Frederick Duhart, the deceased. The defendant never directed Brantley to hire the deceased, but its officers knew that he had done so, and acquiesced in his employment. It took some time to calculate at the end of each week what the defendant owed Brantley, and sometimes the defendant would advance the boy's weekly wage of $4, and charge Brantley with the amount so advanced. On one occasion at least, and perhaps at other times, the defendant's president, *93 R. M. Holloway, made out the company's check directly to the deceased for his week's wage. The defendant "paid social security on him [Brantley]." J. J. Holloway, the defendant's secretary and treasurer, testified: "These fellows [the truck drivers] work pretty hard and long hours on the milk route. You get out and run a milk route twelve hours a day for seven days a week, you get sorter stale and need help." He also testified that if a driver lost any milk while he himself was delivering milk to customers, he would be held responsible for the lost milk.
Annie May Duhart testified, that the deceased lived with her and her husband, and turned over to her each week for the support of the family $3.50 of the $4 earned by him; that the $3.50 was used for the support of the family; and that she earned nothing, and her husband had high blood pressure and earned very little, working at occasional odd jobs. It was undisputed that the money contributed by the deceased was necessary for the support of the family, and that it was so used. She further testified, in substance, that Mr. Brantley told the deceased to report for work at the defendant's plant at two o'clock in the morning; that sometimes the boy was late; that she spoke to Mr. R. Holloway, the president of the defendant company, about getting the boy a bicycle in order that he might get to work on time; and that Mr. Holloway said: "Charlie [the deceased] is all right, but he is late some mornings," and approved of her getting her son a bicycle to ride to his work. Eddie Ross, the other boy who worked on the truck with the deceased, swore that Mr. Holloway talked to him about his work and asked him how he liked it; that witness and the deceased arrived at the plant very early in the morning and loaded the milk on the truck; and that "they would check the truck every morning." Brantley testified, that he often drove his truck off of his milk route three or four blocks to get something to eat for himself and the deceased; and that on the occasion in question he had gone to his regular eating place and got a sandwich and ate it, and was going directly back to his milk route to deliver milk to a regular customer when some one driving a stolen automobile collided with his truck at a street intersection, and killed Frederick Duhart at a place one block from the customer's house. The deceased's parents had another boy nineteen years old who contributed little or nothing to the support of the family. Brantley testified, that he *94 had to make his milk deliveries at a certain time, and that if he did not do so the defendant would discharge him; and that having the boys to deliver the milk enabled him to "cover more territory in a shorter length of time." Ruel Duhart testified, that his son, the deceased, gave $3.50 of his entire wage of $4 per week for the support of the family; that this money was not kept separate from other money that he had; and that he (the witness) paid $1 a week on the purchase-price of the bicycle purchased for the deceased, without knowing how much of the money earned by the boy went on the payments for the wheel.
A finding was authorized, from the evidence, that at the time of the homicide the defendant had regularly in its employment nine employees, exclusive of the boys working on the trucks and delivering milk.
We can not agree to the contention of counsel for the plaintiff in error, that no compensation should have been allowed in this case because Brantley was an independent contractor and not an employee of Macon Dairies Inc., and the deceased was Brantley's employee, and not the employee of the defendant corporation. "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 demarcation is often so close that each case must be determined upon its own particular facts. The chief test to be applied, however, 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." Liberty Lumber Co. v. Silas,
While we have not undertaken to set out all the evidence in the case, we are satisfied that we have stated enough of it to support our conclusion that Brantley was an employee of the Macon Dairies Inc., and was not an independent contractor. In this connection see Lokey v. Hightower,
We are further of the opinion that the evidence warrants the conclusion that the deceased was an employee of Macon Dairies Inc., within the meaning of the workmen's compensation act. Its officers acquiesced in the boy's employment by Brantley, and sometimes advanced Brantley the money to pay for the boy's services; and on one occasion at least the company issued its check directly to the deceased in payment of his wage. Indeed, it is inferable from the evidence that the boy's help was essential to the expeditious and proper performance of the duties Brantley owed to the defendant. See, in this connection, Hockmuth v.Perkins,
The next contention of counsel for the plaintiff in error is that "there was a deviation from the business" of the employer and "the accident did not arise out of and in the course of the employment." "An injury arises `in the course of employment,' within the meaning of the workmen's compensation act, when it occurs within the period of the employment, at a place where the employee reasonably may be in the performance of his duties, and while he *96
is fulfilling those duties or engaged in doing something incidental thereto. . . An accident arises `out of' the employment when it arises because of it, as when the employment is a contributing proximate cause." In New Amsterdam CasualtyCo. v. Sumrell,
Counsel for plaintiff in error contends that the uncontradicted evidence shows that the deceased contributed only $2.50 to the support of his parents, and therefore that the award based on a contribution of $3.50 was too large. This contention is grounded on *97
the fact that the claimants paid out of their general fund $1 a week on the purchase-price of the bicycle purchased by them to enable their boy to get to his work promptly. There is evidence that the employee contributed $3.50 to the support of the claimants each week; that such contribution was necessary for the support of the family of which the minor employee was a member; and that it was used for the support of the family. The bicycle was not purchased for the deceased until his parents and the defendant's president had decided that it was necessary for the boy to have a bicycle in order to get to his work on time. InMaryland Casualty Co. v. Bess,
Under the evidence the hearing director was authorized to find that the employer, at the time of the homicide in question, had regularly in its service at least ten employees engaged in the same business; and there is no merit in the contention that the Industrial Board was without jurisdiction of the case. The judge did not err in affirming the award by the majority of the Industrial Board.
Judgment affirmed. MacIntyre and Gardner, JJ., concur. *98