16 S.E.2d 50 | Ga. Ct. App. | 1941
The evidence supported the award of the Industrial Board, and the judge of the superior court did not err in affirming the award.
Counsel for the plaintiff in error contend that "the deceased . . was an employee of the Safety Cab Company . . , and that while that organization was owned and controlled by Overton-Green . ., it was an entirely separate and distinct business, and that Overton-Green did not have ten or more employees engaged in this separate and distinct business of Safety Cab Company, and that, therefore, the workmen's compensation law does not apply, and the Industrial Board has no jurisdiction in the premises." Counsel further contend that their client was not liable for penalties or attorney's fees. The attorneys for plaintiff in error admitted that Overton-Green owned Safety Cab Company, but insisted that Safety Cab Company was merely a trade-name under which Overton-Green conducted a taxicab business that was entirely separate and distinct from the business operated by Overton-Green; admitted that deceased was an employee of Safety Cab Company, but denied that he was an employee of Overton-Green; admitted that said minors were born, respectively, June 16, 1931, and February 3, 1937, and were the issue of a lawful marriage between Rosa Lee Cook and deceased; and admitted that the accident arose out of and in the course of the deceased's employment.
The evidence discloses the following facts: Overton-Green was a corporation operating a taxicab business in the City of Augusta, Georgia. Safety Cab Company was not incorporated, and was the trade-name under which Herbert Ulmer formerly operated a similar business in said city. Ulmer went into bankruptcy and his *276 business was sold to Fred Melton, an employee of Overton-Green, who, in January, 1939, sold Safety Cab Company to Overton-Green in consideration of the settlement of a debt that he owed that corporation. At the time of the accident deceased was driving a Safety cab, and was earning $10.71 per week. After Overton-Green purchased Safety Cab Company, it continued to operate the cabs formerly operated by it with the sign "Taxi, `Phone 326" painted on their sides; and operated the Safety cabs with "Safety Cab, `Phone 2686" painted on their sides. On December 26, 1939, four Overton-Green cabs and three Safety cabs were being operated. There was a night and day shift for all cabs, and, consequently, eight drivers of Overton-Green cabs, and six drivers of Safety cabs. There were also two telephone operators, one working during the day, and one at night, and, while Overton-Green and Safety Cab Company had separate telephones and telephone numbers, these operators had a "desk-chair switchboard" and answered calls for both Overton-Green and Safety Cab Company. These operators and the president of Overton-Green each had the right to hire, discharge, and direct the drivers for the Safety Cab Company. The drivers of the Safety cabs were at times given written notice transferring them to the Overton-Green cabs. Safety cabs were returned for taxes by Overton-Green, and all the cabs operated as Safety cabs and all the Overton-Green cabs were insured in a policy issued to Overton-Green. The president of Overton-Green operated a garage at which both the Overton-Green and the Safety cabs were washed and repaired. F. H. Gustafson testified that he was employed by Overton-Green and drove a Safety cab at first, but that Fred Melton, who was in charge of all the cabs of Overton-Green and Safety Cab Company, transferred him to an Overton-Green cab. Mr. Green, president of Overton-Green, testified that he owned the majority of the stock of that corporation; and the attorney for Overton-Green admitted that "neither the Safety Cab Company nor Overton-Green has filed any policy of insurance or otherwise qualified with the State Industrial Board, or filed any reports to the Commission."
In view of the rule that the finding of the Industrial Board as to the facts can not be reversed if there is any evidence to support it, we have not undertaken to set out all of the evidence or the conflicts therein. In making his award the director said: "In *277
the instant case we are not dealing with two separate corporations, which of course are separate entities, although the sole stockholder in the corporation might be one and the same individual. Here we have a corporation which acquires a separate business, with exclusive control over the manner, method and means of operating the business and over the employees performing the work; and, of necessity, the corporation acquired the profits or losses incident to the operation of the business. The corporation having control of the business, and having hired and controlled the employees driving Safety cabs, the corporation was the employer of these employees." In support of his views the director cited City Council of Augusta v. Butler,
In support of their contention that Overton-Green and Safety Cab Company were not parts of the same business within the meaning of section 15 of the workmen's compensation act, counsel for the plaintiff in error cite Carswell v. WoodwardBrothers,
The contention of the plaintiff in error that the allowance of $200 as an attorney's fee was illegal, because no evidence was introduced to show what the services of the attorney for the claimant were worth, is untenable, since under the Code, § 114-603, the Industrial Board in a suit like the present one, is not only authorized, but is required, to "fix a reasonable attorney's fee for the representative of the employee to be paid by the employer in addition to the increased compensation;" and the board can do this in the absence of any specific evidence as to the value of the services of said representative. The only case cited in support of such contention is Fry v. Lofton,
The judge of the superior court did not err in affirming the award of the Industrial Board.
Judgment affirmed. MacIntyre and Gardner, JJ., concur.