Roberts v. Burnette , 72 Ga. App. 775 ( 1945 )

Where an agent for an undisclosed principal employs the services of a workman and the workman is injured in the course of the employment, the agent may be held liable for the payment of compensation under the workmen's compensation acts, where the agent employs the requisite number of workers to confer jurisdiction of the case upon the board, if the injured workman shall have elected to proceed against the agent in lieu of proceeding against the principal after the principal is made known.

DECIDED SEPTEMBER 7, 1945. M. G. Roberts, claimant, was injured on August 14, 1945, in Putnam County while employed at a sawmill belonging to J. H. Burnette Jr., but which was operated and controlled by S.E. Bentley, the general foreman of J. H. Burnette Sr. The claimant's application for compensation was duly filed with the State Board of Workmen's Compensation, naming J. H. Burnette Sr., as employer, defendant. Upon the hearing the defendant put forth the defense that he had no financial interest in the sawmill belonging to his son, and that he had employed the claimant for and lent his foreman to his son merely in the interest of assisting him to engage in the sawmill business following his discharge from the army. It is undisputed that the accident arose out of and in the course of the employment, and the only question for determination at the hearing was the question of the existence of the relationship of employer-employee between the defendant, J. H. Burnette Sr., and the claimant. When all the evidence had been introduced, the single director found as a matter of fact that the relationship did exist, and made an award of compensation to the claimant. This award was affirmed upon appeal to the full board, but upon appeal to the superior court of Putnam County the award was set aside and the proceeding remanded to the board for a hearing de novo, limited solely to the question of the existence of the relationship of employer-employee between the claimant and the defendant, upon the ground that in a proceeding before the State Board of Workmen's Compensation the burden of proving the relationship is upon the claimant, and that in this case this relationship was sought to be established by inferences and deductions based on circumstantial evidence, which evidence must not only be consistent with the fact that the party sought to be charged was the employer, but must exclude and be inconsistent with the hypothesis that the party so charged was not the employer of the injured party. The claimant excepts to this judgment. All other prerequisites to authorize an award in favor of the claimant being present and determined by the single director, as they were not in dispute at the hearing, whether or not there was sufficient evidence that the claimant was employed by the defendant as his own employee to authorize an award for the claimant, will not work a reversal of the single director's award in favor of the claimant, under the facts of this case. There is sufficient evidence in the record to establish conclusively the facts that the defendant hired the claimant, acting as agent for his son, and that the fact of this agency was not disclosed. The claimant under these circumstances could elect to proceed against either the agent or the principal, when the principal was made known. The claimant has elected to proceed against the agent, J. H. Burnette Sr. The claimant was not told at the time of his employment that he was to be the employee of J. H. Burnette Jr., nor were certain other of the employees so informed. We conclude, therefore, that, if Burnette Sr., did not employ the workers for his own work, he acted as agent for Burnette Jr., with the fact of the agency undisclosed. It is well established under the common law that, where an agent wishes to avoid personal liability, the duty is on him to disclose his agency, and not on the party with whom he deals to discover it, and one who performs personal services at the request of the agent, who fails to disclose his principal for whom the request is made, may recover from the agent, where he so elects, or he may proceed against the principal, when made known, should he not elect to proceed against the agent. In Georgia it has been held that this common-law doctrine of principal and agent is applicable under the workmen's compensation acts.Davis v. Menefee, 34 Ga. App. 813 (131 S.E. 527), wherein it was held that, where an employee of an agent with an undisclosed principal is injured, the injured employee may at his election proceed against either the principal or the agent, but, having elected to proceed against one, he may not thereafter proceed against the other. This holding has the support of numerous decisions from other jurisdictions. See Scott v. Hankinson, 205 Mich. 353 (171 N.W. 489); Mobile Liners Inc. v. McConnell, 220 Ala. 562 (126 So. 626); Cowell v. Industrial Accident Commission, 11 Cal. 2d, 172 (78 P.2d 1016); Zurich General Accident c. Ins. Co. v. Caverly, 99 Cal. App. 767 (279 P. 473); and see also the cases cited in Schneider's Workmen's Compensation, p. 616, § 232. Burnette Sr. did not disclose that he acted for his son, J. H. Burnette Jr., in hiring the claimant; through his general foreman, Bentley, he maintained control of the sawmill and the employees there; he employed more than ten workers regularly so as to give jurisdiction of the case to the State Board of Workmen's Compensation; so that under this undisputed state of facts an award in favor of the claimant was demanded. The court erred in setting aside the award, and in remanding the case to the board for a hearing de novo.

Judgment reversed. Sutton, P. J., and Parker, J., concur.