*1 law the reason contrary the law. The was for verdict not which the defendant tried accusation, under was charging convicted in in offense stated that it was case, money hazarding scheme or for the “other than device quotation lottery,” by phrase the use marks. of the defendant interposed by There demurrer special was no lottery,” “other than a to the accusation. The use of the words keeping, when the for and defendant was tried convicted lottery, maintaining, employing carrying on a form super- “Bolita,” 26-6502, Code known violation of § illegal and did render or con- guilty fluous the verdict of State, trary the law reason. See for Goldwire 445). were there held to 2d, Such words surpldsage. mere overruling err did not

4. It follows that trial court trial, for new amended. the defendant’s motion Judgment Townsend, MacIntyre, J., P.J., affirmed. cur. et al. v. CO.

33476. ST. PAUL-MERCURY INDEMNITY et ALEXANDER al. Rehearing 22, 1951. May denied June

Decided for McGhee, plaintiffs & error. Currie Willingham, Edwards, Hicks & contra. Cheney, filed J. S. Alexander with the State Board Sutton, C. John a claim for Compensation of Workmen’s arising em- injury of and in the out course accidental against Self, not insured Harris G. who was at ployment, accident, W. time of Indemnity insurer, Paul-Mercury the St. Company and Board, hearing before a director pany. At the first They represented by counsel. Alexander nor Self was neither of Self Alexander was stipulated that accident, which arose and in the out of course of his ployment; thereby temporarily totally disabled; earning per week; $40 sub- Self, that he was who was ject jurisdiction act, the Board and the terms Company. a subcontractor under Florence *2 a Self, hearing deputy

On motion counsel for of second before a held, director to take testimony was the relation- ship Company. between Florence Construction The hearing who held director the first later made award compensation following finding: based on “I therefore a matter find as of fact and conclude as matter a of law within Alexander, injured John S. employee, said the mean- ing Compensation and terms of the Act, Workmen’s was employee of prin- the W. Florence Construction Company, cipal contractor, was the said Harris G. other Self and all Self, subcontractor, said Harris G. admitted Company, the said W. L. Florence Construction principal contractor, is liable to the said John S. Alexan- for the der benefits is entitled to under the Workmen’s Compensation Accordingly, Act.” an award made in favor was Alexander Company Florence Construction Paul-Mercury Indemnity Company St. for per period $20 week the rate of for not to exceed a 350 weeks 1950, change from June or until a in condition or maximum improvement been has reached. appeal full Board,

On to the award affirmed, this was and on Superior appeal to the of Cobb County, Court the award full Board affirmed. To judgment, Florence Construc- Company except. and its insurer controversy

1. The here is not facts, but is as findings conclusions or based thereon. is, claimant Florence Company Compensation within the terms of the Workmen’s Act at the injury? following gathered time of his may be from before the Board: evidence Florence Construction Com- pany contracted with the State to part construct a aof highway new in Cobb County, and made arrangement verbal for many with Self him to furnish as trucks and drivers necessary, according were company’s construction de- termination, sub-grade treatment, binder, haul or rock places company’s equipment from the where places grade high- would load' the trucks to the on the way under construction where Florence’s would direct dumped. the rock Self owned ten claim- trucks; ant and the other drivers of Self, these trucks were hired hired with own also drivers their if and trucks, when the Company required him so. Self to do paid certain yard per amount each cubic rock mile paid hauled his own and Self trucks, own drivers trucks. Self turned in time of their also those who drove paid own and these trucks, directly by company. Self hired the drivers for his trucks hired driving also those indi- own but the evidence cates that had the Self to rid if they of the drivers satisfactory drank liquor job. on the point, Ralph On this Bowen, engi- *3 charge project neer in of the company, for the construction testi- fied, “He was to necessary furnish trucks were and [Self] hired he his own men and we had them, no control over least nothing hiring to do with the and firing long they gave satisfaction, doing anything require not that would run- ning job them the something off like that.” examination or On counsel, “Q. Self testified as follows: Did L. Flor- W. Company through any ence of its exer- hiring cise control over firing or these A. He drivers? hiring; didn’t directly firing. didn’t over tell He did me that any drinking he didn’t allow himself and recommended anybody Q. that I wouldn’t have that would Well, drink. did you anybody job? have that drank on A. One time we instance, had an and that when a ticket man and two of got drinking got gone. Q. the drivers to and all three . . Did you suggest you Florence tell or to that two drivers A. they thought fired? told me He do we could them, without along we a lot better without Q. you them. Who told that? A. Q. Harold Jackson. superintendent job? Yes, of the A. sir.” usually drove one of and when them one of down, repaired. break he would would take it to be The con- operate not their did tell the drivers how to but place loading dumping, them for trucks, other than to operating supposed the drivers cease unless were not down. The when the trucks could' haul trucks broke hours Com- when rock coincided with time on the loading equipment pany’s em- highway. grade company’s The construction loading when ployees they drivers know would let the period not time to obtain another load before the lunch have agents company’s told quitting daily, and the of bad operations stopped not would be because whether or weather. Cooper App. v. Co., ruled Dixie Construction 45 Ga.

It was 152): (165 (1) S. E. under a contract between “Where, work, employer doing and a contractor of certain right direct or the time employer retains control rela- executing thereunder, manner of the work to be done exists, tion master and servant and not the relation independent applied contractor.” test to be ployer parties determining relationship whether the of the is that servant, employer employer or that of gives, whether the or the as- tractor, lies contract time, control the and method of sumes, manner, work, distinguished executing merely from the conformity certain definite results contract. Yearwood, (2) Peabody, 901), cited. therein cases was authorized find from think the Board the evidence

We Florence Construction that Self independent contractor, and that the claim- pany, and *4 one the driver of of Self’s was also ant, company injured. the he was could under Self and the of his trucks work, that drivers only Florence arrangement, when the terms of the employees were sup- other were not Company’s con- stop working down; a truck the posed to unless broke that company right had the Self to to direct rid they that re- unsatisfactory; the could if job put the to take quire to more trucks and drivers on or

211 than some definite off; that service rather result them type work and nature the such required; and that done com- might ordinarily have been all show part business, of its tend to pany’s own right Company regu- the Florence Construction to that operation furnished late and control the of the trucks owned and highway construc- hauling in the rock and binder for by Self 427 job. Starrett, App. 422, v. Ga. As stated Davis 39 builder (147 530), E. “The whether or not the S. is direct and control Under the retained the to the work. work contract builder could detail manner which the plans specifications. be by furnishing done to work reduce it. could, It could increase the It certain or instances, stopped pleas- work and recommenced at its have It could determine there work- enough ure. that were not skilled job put men on the it. It could cause more on the sub- any discharge contractor not satis- It factory to the builder. could the contract do terminate the builder shaped the work itself. contract was so doing authority could exercise extensive and intimate work, Tyler opinion Company we are of contractor.” In v. 201 Smith, was not Blair (41 2d, 133), 750 S. E. it was in the Ga. said that case v. Starrett, supra, provided Davis “the contract that the builder general to, contractor add or take the work be from, or consulting the other performed without party, retained impose absolute will in lieu provisions performed. .” tractual the work to . Also connection, in this & Co. v. see, Alston, App. 649 Swift (173 741); Liability American S. E. Mut. Ins. Co. v. 61 Harris, (6 App. Liberty 2d, 168); Ga. S. E. Mut. Ins. Co. v. Kinsey, App. (16 Maryland 2d, 179); Casualty E. S. Co. v. 658). 2d, Stewart, 74 Ga. written between

There was no contract Company, and the terms the verbal understand- However, rather ing parties, are indefinite. conduct of evidence, arrangement as disclosed shows that substantially similar to contract was contract Davis supra. appear Starrett, It does not definite amount *5 haul by He was was to be hauled Self’s trucks. rock company determined he should rock as much and per hauled, haul, receiving compensation for each unit mile put him company and did construction by paid directly drivers, through stated Self. As from the evi- Board authorized find above, we think the com- construction between Self and the the contract dence that claimant Self and the pany employment, was one Company at of the Florence Construction injured. time the claimant' was since company and insurer contend that

The construction construc under the that he a subcontractor Self admitted .was remedies company, claimant must exhaust his first Code, required employer, by immediate against Self, his by the case of 114-112. This contention is answered United § App. 707 Fidelity Co. v. Stapleton, States &c. general 506), in which this court stated the distinction between the above special employer, held, independently and a special liable to Code, that the section required being institute without claimant first claimant Liberty Mut. general employer. Also, claim see (supra). Kinsey, Co. v. Ins. affirming superior that the court did not err in It follows finding of the State Board of Workmen’s and award

pensation. (Ann. (Ga. 1945, p. 232, the act of 1945 Code

Pursuant to requiring full 24-3501), consider Supp.), court § judges may division dissent, one of of a case in which by and decided the court as considered whole. case was Townsend and Judgment MacIntyre, P.J., Gardner, affirmed. Felton, dissents. concur. Worrill, JJ., J., dissenting. The claimant in J., this case was Felton, operated one G. Self of Self’s trucks. Harris ployed deducted Federal wages, him income taxes paid security payments. necessary It is not decide social by truck drivers obtained who owned was the status paid directly own trucks and who were Con- person. not such a Company, the claimant was struction express There was no contract between Self and Florence Con- Company definitely spelling rights out the exact parties, duties of the presented so the answer to the lies *6 actually what was par- done under the contract. What the thought ties the relevancy. legal contract was, is of no It the is consequence attaching that parties matters not what the concluded. Self thought independent was an contractor he 'had workmen’s insurance. Florence thought Self against damage was an and insured itself caused Self’s trucks. If we look con- to such terms tract as there -and thereunder, see what actually done we independent should conclude in- that Self anwas contractor operation sofar as the The with his own trucks was .concerned. quoted evidence opinion as to the court’s conclusions discharge unsatisfactory employees Florence’s employees drunk my does not to mind authorize conclusion In place, reached. first simply statements clusions of the witnesses. There testimony no is the record interpret I it' to the effect that Florence discharge a man who drove one of testi- Self’s trucks. Self’s mony shows that actual no cases drunkenness Florence did than engineer more advise should be done. Florence’s simply got testified that if a driver disorderly, too drunk or job. Any proprietor Florence could run him the off principal contractor could do that without becoming person disciplined. so I think that under the 'in the record employer. contractor and the claimant’s majority opinion- arguments contains several why finding arguments correct. Several of Board’s these to my valid, logical mind are not or relevant. The fact -that a dif- might situation ferent have existed men as to who owned bearing own trucks has no on the status of Self’s own trucks. same true is as to fact that the time of similarly work claimant and others situated coincided with working time Florence’s loaded the trucks placing directed the time, of the material. The control of contemplated law, stipulated by not the control of is principal the contract between contractor and the sub-in- dependent contractor. In it necessarily this case was under- get his between Florence and Self that Self could

stood Self’s when Florence’s men were and that loaded loads. dump would be directed as to where to v. PRUDENTIAL INSURANCE 33444, 33445. THOMPSON AMERICA; OF and vice versa. COMPANY *7 June Decided