Blakely v. United States Fidelity & Guaranty Co. , 67 Ga. App. 795 ( 1942 )

The evidence before the director demanded a finding as a matter of law that, at the time of the fatal injury to the claimant's husband, he was engaged solely as an employee of an independent contractor, who in his regular employment acted as foreman in the construction work of the defendant contracting company and as part of his duties hired the necessary employees for such work, and was retained on its pay roll at a reduced wage during the time when no construction work was in progress, but who was hauling, with the assistance of the deceased, during such an inactive period and on a Sunday, certain of the company's equipment from a former work location to its headquarters for a total fixed price; the obligation under such special contract being that he should hire and pay out of his own funds the necessary helpers in such undertaking, and the company exercising no control or right of control as to the time, manner, and method of the hauling or as to the helpers to be engaged. Accordingly, the superior court did not err in reversing the award of the board affirming an award of compensation by the director of the Industrial Board in favor of the claimant.

DECIDED JULY 11, 1942. REHEARING DENIED JULY 22, 1942. On a hearing of a claim for compensation filed with the Industrial Board against Sanders-Perkins Construction Company, alleged employer, and United States Fidelity Guaranty Company, insurance carrier, the single director made an award in favor of the claimant, and this award was affirmed by the full board. On appeal by the defendants to the superior court the appeal was sustained and the award set aside. To the judgment of the superior court the claimant excepted. From an inspection of the record and brief of counsel for the defendants all the facts necessary to support an award in behalf of the claimant are admitted except as to the claimant's husband being an employee of the construction company. The sole question presented for determination before the director, the superior court, and this court is whether or not the claimant's husband was, at the time of his death, an employee of the construction company or was the employee of an independent contractor.

The following appears from the evidence: Sanders-Perkins Construction Company was engaged in business as a road construction contractor. After completing certain contracts it was found that the company had certain equipment at Hazlehurst in Jeff Davis County, Georgia, and at other points, which it desired to have moved to its headquarters in Hinesville, Georgia. Some of this equipment had been hauled by one Roy Vondo at a contract price of $20 a load. J. H. Melder worked for the company in the capacity of foreman, and part of his duties consisted in hiring employees for such construction work as the company might be engaged in. When the company had a contract in process Melder was paid $46 per week. During the times when the company was not engaged in construction work Melder was retained on the pay roll but was paid only $30 per week. Melder owned a truck, which he sometimes rented to the company but which was idle, and approached the company with a request that he be allowed to haul some of the aforementioned equipment at the same price as was being paid Vondo. They entered upon a contract whereby Melder was to haul, for a fixed sum of $40, two loads of equipment from Hazlehurst to Hinesville, Melder to furnish his own truck, engage and pay for all necessary help in moving the equipment. No definite time was set for the delivery of the equipment, and the company had no control and reserved no right of control as to the time or method of hauling the equipment or as to what employees should be engaged to assist in the removal thereof. Melder hired Tyre Blakely, the deceased husband of the claimant, to go with him and others to Hazlehurst to move the equipment to Hinesville. Blakely had previously worked for the construction company. On January 9, 1941, he worked two hours, and on occasions thereafter, the last day he worked being February 20, 1941. Since that time he had worked in Glynn County, cutting pulp wood for a Mr. Paulk. Melder, on Sunday, March 9, 1941, went to Glynn County and engaged him and another to assist him in hauling the two loads of equipment above mentioned. After the equipment had been loaded on Melder's truck at Hazlehurst on that Sunday and was being hauled to Hinesville, a wreck occurred near Jesup and Blakely was killed.

"Under the Georgia statute and decisions, the test to be applied in determining whether the relationship of the parties under a contract for the performance of labor is that of employer and servant, or that of employer and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control the time, manner, and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract." Yearwood v. Peabody,45 Ga. App. 451 (2) (164 S.E. 901). See also Cooper v.Dixie Construction Co., 45 Ga. App. 420, 425 (165 S.E. 152);Bentley v. Jones, 48 Ga. App. 587, 590 (173 S.E. 737);Swift Co. v. Alston, 48 Ga. App. 649, 650 (173 S.E. 741). "The fact that an employee is the general servant of one employer does not, as matter of law, prevent him from becoming the particular servant of another, who may become liable for his acts. And it is true as a general proposition that when one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him." 18 Rawle C. L. 784, § 244; Bibb Mfg. Co. v. Souther,52 Ga. App. 722, 725 (184 S.E. 421); Travelers Insurance Co. v. Clark, 58 Ga. App. 115, 122 (197 S.E. 650);Henderson v. Nolting First Mortgage Cor., 184 Ga. 724, 740 (193 S.E. 347).

Applying the above-stated principles of law to the facts of the present case, a finding was demanded as a matter of law that in hauling the equipment in question Melder was acting as an independent contractor and the deceased was at the time engaged solely in serving him. The company exercised no control or right of control as to the time, manner, and method of executing the work, which was to be done for a fixed price of $40, the obligation being upon Melder to hire and pay the necessary helpers out of his own funds. The fact that Melder was retained on the pay-roll of the company at a reduced wage as foreman of the company's construction work which it might undertake, but as to which it was not at the time executing any contract, does not overcome the special status of Melder as an independent contractor in hauling the equipment as a special and distinct engagement for a fixed sum. It has been stated many times that the test of the relation of employer and employee is not that the particular work under consideration was done within the periodof employment, but whether it was done within the scope of andin the course of the employment. The fact that the claimant's husband had worked on several occasions for the contracting company did not make him its regular employee. The evidence shows that since his last day's work for that company he had become the special employee of another in Glynn County in cutting pulp wood, and that in assisting in hauling the equipment from Hazlehurst to Hinesville on March 9, 1941, he had become the special employee of Melder, free from any control or right of control by the company. In these circumstances no liability for the payment of compensation on account of his fatal injury rested upon the contracting company or the insurance carrier. The evidence was not sufficient to authorize the award rendered by the single director and affirmed by the full board, and the superior court properly reversed the award of the Industrial Board.

Judgment affirmed. Felton, J., concurs.