*1 v. KLING. 36859. WEISS Rehearing denied Decided October 1957. October Spears, Grant, plaintiff Robert W. Wm. G. in error. Emory contra. Augustine Sams, Kinard, motion for a directed defendant, in his J. Nichols, non obstante verdict, motion motion for on which author evidence did not contended that the based, veredicto1was petition. of her plaintiff a verdict for the ize trespass plain- that a authorized The evidence place, that several taken tiff’s plaintiff’s property down, and that cut had been amount trespass in at least the by damaged had been question pre- jury. by returned trespass. is liable law for sented relationship The fact that existed between some undisputed. and the Southern Tree Service is The contention that the was one of master and servant while the contention of the defendant re- is that such *2 independent lationship was that of an contractor. The evidence specifically pointed of the defendant that he out the boundaries his property Rogers, of to Mr. owner of the the Southern Tree Sendee, and instructed him that all trees to be trimmed or topped his, must be on defendant’s, property is uncontra- dicted, therefore, unless of master servant and existed, bring so as to of respondeat superior the doctrine into case, plaintiff’s petition is demanded. testimony
The demands a that he did not any exercise control over Southern Tree Service, which did cutting. However, the actual the fact he did not exercise controlling is not right control if in fact he under his oral contract to authority exercise as to the time, manner and means of the execution of the work. “The true test whether person employed servant or an contractor is employer, under the contract, whether oral or writ- ten, right has the time, direct the manner, the methods, and the means of execution of the as contradistin- guished from to insist producing contractor according results contract, to the or whether the contractor m performance of the work contracted for any is free from control of the time, manner, and method performance of the work. Zurich General Acc. & Liability Ins. Lee, App. (136 Co. v. 36 Ga. 248 173); Irving S. E. v. Home Accident Ins. Co., App. (137 36 Ga. 551 S. E. 105); Home Acci dent Ins. Co. v. Daniels, App. (157 42 Ga. 648 S. E. 245); Bent ley (173 Jones, App. 48 Ga. 587 737); S. E. Liberty Lumber Silas, App. (175 Co. v. 49 Ga. 262 E. 265); Yearwood v. Pea App. body, (164 901).” 45 Ga. S. E. Ellijay Banks v. Lum Co., (200 (Italics ber ours.) S. E. While there was evidence that the defendant did not direct the time, manner, cutting, and method of the means which evidence uncontradicted, was there was no evidence ex- adduced which pressly many stated, words, in so that the defendant did or did authority necessary to consider and becomes have this testified to in order which of contract were terms defendant if an inference was authorized determine defendant testified that Southern authority. have such contract, that Mr. cutting Service to do person (the Southern Tree and the owner of the Davis helper job, dealt), had a with whom completed days, the work was in three under the contract a flat fee for the Southern Tree Service pay that he was to and topping trimming and doing work which consisted employed specific only. person to do on his “When em is in and the exercise a distinct work ployment, specific and in the execution of this work is not under supervision the immediate and control of employment, payment, the work and the entirely relation employee, labor is left to the party employed being exist, of master servant does *3 Independent Moll on Contractors an contractor. Employers’ Liability, 13, 14, 15, and 16.” Lamb v. §§ 607). Bag (1) (106 Mills, Fulton &. Cotton E. Ga. S. Applying above to the uncontradicted evidence was an con- appears that the Southern as tractor who controlled as well payment employment, control, of labor. for the defendant on the verdict demanded, grant trial in failing court erred to judgment for a non
motion of the defendant veredicto obstante prayers. as to such support the cross- on trial in
The evidence adduced trial defendant and the verdict for the did not demand a action gen new trial on motion for denying not err in court grounds. eral trial motion new denying the
Judgment for af- defendant’s judg- motion denying Judgment for firmed. with that reversed direction notwithstanding ment in accordance court enter trial J., C. concurs J., Felton, concurs. Quillian, motion. with specially. judg- I concur in J., concurring specially.
Felton, C. employs is that, resaon one another who ment for the when by independent business and actual engaged in an does the contract not show employer shown, where in right of control whether there was a reserved employee inde- prima presumption is a facie there does show in this case pendent contractor. The evidence by employer nor does contract show actual control employer to control the was reserved in I think the and 105-502. and his servants. Code 105-501 §§ prove proof was this case to burden of he failed 105-502, which exception stated in of Code division 5 § do. to & MACHINE
36869. ANDERSON SAVANNAH v. FOUNDRY COMPANY. stat upon Federal placed construction J. 1. The
Townsend, where certiorari Appeals, by a Court ute United States is, if not Court, Supreme been denied States the United (see Bugg v. Consolidated absolutely binding court entitled E. at least Grocery 550, 552, Co., 155 Ga. 118 S. (Morgan Limbaugh, high persuasive consideration App. 663, 44 E. 2d Harbor Workers’ Longshoremen’s and provided 2. It is U.S.C.A. Act, 33 Compensation § of all place and in “shall exclusive under that act awarded legal employee, his liability of such other next dependents, wife, parents, representative, husband or damages from anyone entitled recover kin, and otherwise *4 admiralty of such in on account employer at or in Coles, & Co. v. in Smither jury or death.” It is held Sup. 1 L. (cert. Ct. 2d den. 354 U. Fed. exclude suit provisions act ed. 2d brought by wife of damages consortium for loss of injured received employee where the part expressly overrules act, and this case contrary in which Argonne Co., Fed. 2d 811 Hitaffer before us in the case reached. The decision was