37 Ga. App. 707 | Ga. Ct. App. | 1928
This case arose under the workmen’s compensation act, on. the claim of Mr. and Mrs. W. A. Stapleton, for compensation for the death of their son, John Stapleton, directed against Lawrence-Claussen Construction Company, alleged employer, and the United States Fidelity & Guaranty Company, insurer. From an award in favor of the claimants the opposite parties appealed to the superior court, and, the appeal being denied, they excepted. The decedent was killed on July 12, 1926, in the course of his employment and because thereof, by the overturning of a motor-truck which he was driving. The contentions of the plaintiffs in error are that the decedent was not an employee of 'the construction company, but was the servant of another as independent contractor, and also that the award was illegal because this company was not paying to the decedent wages and was not liable for the payment of the same to him. The questions for decision therefore are: 1. Was the decedent an employee of the construction company within the meaning of the compensation act? 2. Is the payment, or liability for the payment, of wages to the alleged employee by the person sought to be held an absolute prerequisite to an award of compensation against him?
In Scribner’s case, 231 Mass. 132 (120 N. E. 350, 3 A. L. R. 1178), the court held that a driver who, with his team, was let by an ice company to a coal company for the delivery of coal, and who was subject to the orders of the coal company, should, in case of injury while in the yards of the coal company, look to it for compensation under the workmen’s compensation act, although he received his wages from the ice company and remained in the general employment of that company, which relied on him to look after its team. In that" ease the court said that the “weE-established principle of the common law which holds that an employee who is lent to a special employer as distinguished from
In Dale v. Saunders, 218 N. Y. 59 (112 N E. 571, Ann. Cas. 1918B, 703), the New York Court of Appeals said that “Where an employer hires the services of his team and employee to another to haul sand, the employee is still working for the original employer when he is loading sand in a pit for the purpose of hauling it, and therefore is entitled to compensation from the employer but in view of the later decision by the same court in De Noyer v. Cavanaugh, 221 N. Y. 273 (116 N. E. 992), it would seem that the ruling just quoted should not be taken as excluding the right to compensation from the special employer where the employee was subject to his orders and control, within the rule above referred to. In the DeNoyer case the court said: “Even where no property of the general employer is intrusted to the employee to be used in the special employment, the general employer pays the compensation, may direct the employee when to go to work, and may discharge him for refusal to do the work of the special employer. The industrial commission, therefore, has full power to make an award against the general employer. It does not follow that by the application of this rule the special employer' is not to be held in any case. The fact that a workman has a general and a special employer is not inconsistent with the relation of employer and employee between himself and both of them. If the men are under the exclusive control of the -special employer in the performance of work which is a part of his business, they are, for the time being, his employees. Comerford’s case, 224 Mass. 571, 573 (113 N. E. 460). Thus, at one and the same time they are generally the employees of the general employer and specially the employees of the special employer. As they may, under the common law of master and servant, look to the former for their wages and to the latter for damages for negligent injuries, so under the workmen’s compensation law they may, so far as its provisions are applicable, look to the one or to the other, or to both, for compensation for injuries due to occupational hazards [citations], and the industrial commission may make such an award as the facts in the particular case may justify.”
In Ga. Ry. & Power Co. v. Middlebrooks, 34 Ga. App. 156 (128 S. E. 777), this court held that “Payment of wages, although not necessary to render one a master, is necessary to bring one within the workmen’s compensation act, which contemplates that compensation shall be fixed in proportion to the employee’s wages as applied to the particular injury”; and in the opinion it was said that “there must be a contract of hiring and a provision for payment for services of the employee by the employer.” But in that case the defendant railway company, which sought to establish the relation of master and servant between it and the plaintiff, and thus to relegate the plaintiff to a claim under the workmen’s compensation act, had paid nothing as wages or hire for the plaintiff’s services, either to the plaintiff or to the company from which the plaintiff’s services were obtained, and appears to have had no contract with either for the payment of the same. In the present case, while Stapleton, the employee, was originally hired by Jones, from whom he received the reward of his labor, Jones was in turn paid by the construction company. So that this case is to be dis
In addition to the cases already cited, others may be mentioned in which compensation was awarded as against the special employer irrespective of the fact that he may not have paid wages directly to the employee. In Cayll v. Waukesha Gas Co., 172 Wis. 554 (179 N. W. 771), the court said: “Where an excavation contractor’s employee consented to be transferred to the service of a gas company laying pipe in the ditches dug by the contractor, and was injured while working for the gas company and under its sole control, the gas company, and not the contractor, was liable for compensation, he being an ‘employee’ of the gas company under an implied contract of employment within the common law rule.” In that case the gas company paid Cayll, the general employer, for the time spent on its work, and Cayll carried Massino, the injured employee, on his payroll as theretofore. The industrial commission thought the gas company was under a moral obligation to indemnify Massino, but on legal grounds felt bound to hold that the indemnity should, be paid by Cayll. The trial court held that both,legally and morally the obligation rested upon the gas company, and in this view the appellate court concurred, holding that, “While there was no express contract be
As suggested by the industrial commission, the primary object of the compensation act is to shift the burden of economic waste entailed by personal injuries in industrial operations to the industry, to be eventually borne by the consumer as a part of the necessary cost of production. The death of Stapleton resulted from the industry in which he was engaged, to wit, the highway construction work. He was running the truck for the purpose of hauling material necessary in 'the construction of the highway at the time of the fatal injury. It is conceivable that a different result would have been reached had his death been caused by some act in connection with the care of the truck, which 'was a part of his general employment and over which the construction company had no power of control. To hold that an .employee injured while under the control and direction of a special employer can not recover compensation against the special employer would unjustly deprive the injured employee or his dependents of the very benefits which the act was intended to give. One of the purposes of the law is to guard against the negligence of persons intrusted with superintendence and authority in the operation of machinery. In great .enterprises there are many instances where- workmen are supplied indirectly, as the plaintiff was here. “To hold that all such persons are outside the pale of the compensation act would be to open an avenue for the complete subversion of the act. By having their laborers employed and paid by a third party, and sent to them through such third party, employers could thus escape all liability.” See Miller v. N. Hudson Co., 152 N. Y. Supp. 22.
It follows from what has been said that the award in this case was authorized, and that the superior court properly denied the appeal of the construction company and its insurer. This conclusion has been reached by us independently of section 20 of the compensation act. While the provisions of that section do not
We do not mean to hold that the claimant in the present case might have had an election as to whether they would proceed against either the construction company or Jones, or both, had the latter 'been subject to the workmen's compensation act. While we have cited cases from other jurisdictions to the effect that a claimant, under certain states of facts, would be entitled to such election, in the present ease it is necessary to rule only as to the liability of the construction company. Compare the Scribner and Pruitt cases, supra.
We have carefully examined all the cases cited by counsel for the plaintiffs in error and are of the opinion that they are inapplicable in the solution of the questions presented by the instant record.
Judgment affirmed.