Opinion
34523.
DECIDED MARCH 12, 1953.
Workmen's compensation; from Glynn Superior Court — Judge Thomas. December 18, 1952.
B. N. Nightingale, for plaintiff in error.
Ewing Farrar, contra.
In this workmen's compensation case, the award finding the deceased to be the employee of the city was authorized, where the undisputed evidence revealed that the city, by virtue of an ordinance, established a recreation committee with power to employ personnel and maintain athletic fields, which committee employed the deceased and controlled his activities, the employee's salary being paid in part directly by the city and in part from the proceeds of the athletic-field fund, regardless of the fact that the athletic field was owned jointly by the City of Brunswick and Glynn County, or the fact that net profits were shared between the city and county.
DECIDED MARCH 12, 1953.
The sole issue in this workmen's compensation case is whether the City of Brunswick was the employer of the deceased employee so as to render it liable for payment of death benefits to his widow to the extent of 85% of $24 weekly for a period of 300 weeks, plus funeral expenses.
The undisputed evidence reveals that the City of Brunswick, by virtue of a city ordinance the validity of which is unquestioned, created a Playground and Recreation Board for the city consisting of five persons appointed by the City Commission and including one member from each ward, which board was empowered to provide, maintain, and conduct playgrounds, athletic fields, and other recreational facilities, to maintain and equip athletic fields, and to employ playground directors and other employees; that this board was to submit a budget to the city for approval and, upon its approval thereof, to administer the provisions thereof; to receive fees and revenue from the operation of recreation facilities and solicit or receive gifts, bequests, and donations; and to make complete monthly reports to the city.
Lanier Field, where the deceased met his death as the result of an accident in the course of his duties as Director of the Recreation Department for the City of Brunswick, is an athletic filed, upon which a football game had been scheduled for the night on which the accident occurred. Revenue is received from athletic contests at Lanier Field, and the checks and vouchers pertaining to the operation are kept separate from other accounts. Lanier Field is owned jointly by the City of Brunswick and Glynn County, but its management is entirely under the Recreation Board of the city. The board receives a percentage of gate receipts from activities scheduled by it at Lanier Field. Any net profit resulting from the operation of the field over and above this percentage of gate receipts and expenses of operation would be reported to the County of Glynn. The county, however, takes no part in the administration of the field, nor does it employ personnel or control or direct their activities, this being a function of the Recreation Board. The deceased received a salary of $240 per month as Director of the Recreation Department, of which $175 came exclusively from the City of Brunswick, and $65 from the Lanier Field Fund of the City of Brunswick Recreation Department. It appears from the briefs of counsel that, as to Lanier Field activities, the city and county cooperated on a 50-50 basis both in appropriations and in sharing profits.
It is contended by the city that, under this state of facts, it was not the employer of the deceased, at least to the full extent of the liability assessed. The decision of the hearing director in favor of the claimant was appealed to the Superior Court of Glynn County and there affirmed. The judgment of affirmance is assigned as error.
A city may operate an amusement park for profit, and it retains a measure of control over the premises when the operation of the park is vested in a committee composed partly of members of the city council. Davis v. City of Atlanta, 84 Ga. App. 572 ( 66 S.E.2d 188). From this it follows that a city which operates a recreation filed for profit, under an ordinance placing sole control of such field in a board appointed by the city commission, retains sole control over the operation of such premises by and through such board as its agent and creature. The test as to who is the manager or employer is the same in workmen's compensation cases as in master and servant cases generally, and is determined by the facts: (1) that the special master must have complete control and direction of the servant for the occasion; (2) that the general master must have no such control; (3) that the hirer must have exclusive right to discharge the servant, and (4) to put another in his place, or (5) to put him to other work. Georgia Ry, Power Co. v. Middlebrooks, 34 Ga. App. 156 ( 128 S.E. 77); Brown v. Smith, 86 Ga. 274 ( 12 S.E. 411).
It is obvious here that the city had exclusive right to hire and fire the deceased, to control and direct his activities, to give him other duties, or to give another his duties, and that the county had no such authority or control. The City of Brunswick appears to have had an agreement with the County of Glynn similar to that under consideration between the same governmental bodies in City of Brunswick v. King, 65 Ga. App. 44 ( 14 S.E.2d 760), where the city, through its manager, supervised and maintained a toll bridge and hired employees, which employees were paid at the office of the county commissioners with funds collected from the management of the toll bridge and turned over to the county for payment of expenses, the surplus being divided between the city and county. It was held in that case that an employee who was accidentally killed while engaged in the maintenance of the bridge was an employee of the City of Brunswick so as to be entitled to workmen's compensation. Likewise, in City Council of Augusta v. Butler, 50 Ga. App. 838 ( 179 S.E. 149), where a hospital was maintained and operated by the city through a board of trustees chosen jointly by the city and the Medical College of Georgia on land owned by such trustees, and by city ordinance the management and control of the hospital was vested in an executive committee of the college faculty, an employee of such hospital was deemed an employee of the city for purposes of workmen's compensation. These cases rest on the principle that, although there is a working arrangement between two corporations or governmental bodies, the one which has the direct supervision and control of the employee is to be considered the master or employer for purposes of compensation. In this connection, see also United States Fidelity c. Co. v. Stapleton, 37 Ga. App. 707 (1) ( 141 S.E. 506); Small v. NuGrape Co. of America, 46 Ga. App. 306 ( 167 S.E. 607).
When the City of Brunswick by ordinance set up a Recreation Board, consisting of persons appointed by the City Commission, to have sole control and authority of the project on which the deceased was working, and also of the activities of the deceased, his salary being paid in part directly by the city and in part from the proceeds of the project, the Recreation Board was the agent of the city to employ the claimant's husband, and the latter was, in contemplation of law, the employee of the city. Accordingly, the award in favor of the claimant was authorized, and the trial court did not err in affirming the same.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.