Opinion
33845.
DECIDED APRIL 19, 1952. REHEARING DENIED JUNE 4, 1952.
Appeal; from Bibb Superior Court — Judge A. M. Anderson. September 21, 1951.
T. Elton Drake, John M. Williams, for plaintiff in error.
Carlton Mobley, Harris, Harris, Russell Weaver, Jones, Jones Sparks, contra.
1, 2. The evidence demanded a finding that neither the claimant nor his employer was an employee of the main plastering and lathing contractor, and demanded a finding that the claimant was an employee of B. F. Bennett individually.
3. In the absence of an express stipulation otherwise, workmen's compensation insurance covering the employees of a partnership does not cover an employee of one of the partners individually whose employment does not concern the partnership business.
4. Whether compensation against Churchwell Brothers was authorized under Code § 114-112 is a question not raised under the facts of this case.
DECIDED APRIL 19, 1952 — REHEARING DENIED JUNE 4, 1952.
Velmer Smith filed a claim for compensation against B. F. Bennett, Bennett Stauffer Plastering Company, Churchwell Brothers Construction Company, Archie R. Briggs Construction Company, St. Paul-Mercury Indemnity Company, Employers Liability Assurance Corporation, Standard Accident Insurance Company, and Glens Falls Indemnity Company. The claim arose from the following situation: Archie R. Briggs Construction Company had contracted with Mercer University in Macon, to construct a dormitory. Briggs had subcontracted with Churchwell Brothers Construction Company for the lathing and plastering work. Churchwell Brothers had an oral agreement with B. F. Bennett to do the lathing work. The claimant was hired by Bennett to work for him in erecting the laths. The claimant, while erecting the laths, was struck in the eye by a nail or some other object, causing a permanent total disability of the eye.
The claimant testified as follows: that he was hired and paid in cash by B. F. Bennett; that Horace Bennett, B. F. Bennett's brother, was foreman on the lathing job; that he reported his injury to Horace Bennett, who sent him to a doctor; that Churchwell Brothers were doing the plastering; that at times the plasterers worked closely behind the lathers; that, when something went wrong about the lathing, Churchwell Brothers would tell him about it and it would have to be fixed; that Churchwell Brothers never paid his salary; that the only person he knew in connection with the work was B. F. Bennett; that there was times when Bennett was not on the job and the plaster foreman would tell him something had to be done differently. B. F. Bennett testified that the claimant was working under his supervision. Sidney Churchwell testified: that he did not hire the claimant, and that the claimant was not on his payroll; that he did not have any control over the claimant; that he did not pay social security on the claimant; that, if the lathing was not going right, he would take it up with B. F. Bennett; "Q. Did you ever get any of his workmen to come back there and re-do a job when he was not around, Velmer Smith to come back here and fix this lath or do this bed work? A. I would tell them if there was a bed off or somebody had knocked a bed crooked or some place they had gone over and missed. Q. You would tell his employees that and get them to do it? A. I asked them to come back and fix it. Q. You would ask his employees? A. I would ask one of the lathers. Q. To come back and fix the lath or bed work? A. Yes, sir. Q. And he would come back and do it, he wouldn't have to ask Mr. Bennett whether he could come? I mean you wouldn't wait for him to ask Mr. Bennett to come and do it? A. No, sir, he wouldn't have to do that. Q. Were you watching the lathing work all the time to see if it was done properly? A. I was trying to get good lathing done. Q. If you saw a workman doing something improperly, would you tell him to tell him it was improper, to do it another way? A. Yes, sir, because of an off-lath I wouldn't want to put my plaster on and I would try to correct any mistake in the lathing work. Q. And you would on a number of times during the time you were operating the contract tell Velmer Smith or somebody else working there to fix this lath this way instead of the way they had it or something of that type? A. I would ask them at times, yes, sir. I never did figure I had the right to tell them. I always asked them. Q. You would ask them to do it? A. Yes, sir. Q. And they would go ahead and do it, would they not? A. Yes, sir."
J. F. Churchwell testified: "Q. What kind of control did you exercise over his men? A. Over his men only when he was not there. Q. Well, what was that? A. That is if Mr. Bennett was not on the job and something was wrong, we would go get one of his men to correct it. Q. But if Mr. Bennett was on the job? A. You would see Mr. Bennett in that case. Q. Well, now when you made this contract with him, did you have any understanding about the insurance or compensation? A. Only by asking him if he had insurance, and his answer was `Yes'. Q. He said he did have? A. Yes, sir."
Horace Bennett testified: "Q. Did they [Churchwell Brothers] ever talk to you or any of the other employees on this job about how it should be done? A. Well, now, if anything was wrong why they would come and tell you and we would have to go and fix it. Q. What did Churchwell tell you to do while you were working there? A. Well, he didn't tell me anything particularly unless there was a bed out of line or something like that. Q. Now, isn't it true that you had control of your own employees, that Churchwell didn't have any control over them? A. Well, of course some days I was not there. In fact, Mr. Smith there worked quite a few days on that job himself, all by himself. Q. But you paid him or your brother did for that work? A. Yes, sir. Q. Churchwell didn't pay him? A. No, sir. Q. You took out social security for him? A. My brother did. Q. And he was hired by your brother? A. That is right. Q. Churchwell did not pay him any wages? A. No, sir."
The claimant was awarded for permanent total disability of the eye as against Churchwell Brothers Construction Company and Employer's Liability Assurance Corporation. The claim was dismissed as to Briggs Construction Company, Bennett Stauffer Plastering Company, Standard Accident Insurance Company, Glens Falls Indemnity Company, and St. Paul-Mercury Indemnity Company. Churchwell Brothers Construction Company and Employer's Liability Assurance Corporation appealed the award to the Bibb Superior Court, where the award was affirmed and they except.
1. The evidence failed to show that Churchwell Brothers Construction Company employed B. F. Bennett to do the lathing work as an employee of the company. Rather, it showed Bennett to be an independent contractor. While the evidence did not disclose just exactly what were the terms of the agreement between the company and Bennett, it did show that Bennett had other jobs going throughout the State at the same time he was doing this work and was away from Macon attending to these jobs a good part of the time. It showed that Churchwell Brothers inquired of Bennett before the agreement was made as to whether or not he had compensation insurance, and that Bennett assured the company that he had such coverage. Therefore, even though the exact terms of the agreement were not shown, the evidence generally showed that the actions of the parties in carrying out the agreement were consistent with the relationship of contractor-independent subcontractor and inconsistent with that of employer-employee.
2. It is contended that the evidence authorized the finding that Churchwell Brothers Construction Company assumed control over the employment of the claimant so as to render him its employee. The contention is without merit. The fact alone that Bennett was paid on a piece-work basis would not have rendered him or the claimant an employee of Churchwell Brothers, nor would that fact alone render him an independent contractor. Maryland Casualty Co. v. Radney, 37 Ga. App. 286, 288 ( 139 S.E. 832). The test as to whether the claimant was an employee of Churchwell Brothers Construction Company is whether the lathing contract gave, or Churchwell Brothers assumed, the right to control the time, manner, and method of executing the lathing work, as distinguished from the right merely to require certain results in conformity to the lathing contract. Yearwood v. Peabody, 45 Ga. App. 451 (2) ( 164 S.E. 901). The evidence did not show that Churchwell Brothers had a contract right to or actually did direct the time, manner, and method of erecting the laths. It was shown that when the lath work was improperly done, one of the Churchwell brothers would tell one of the Bennetts, or if neither of them was present, then the claimant, that the work was improperly done and should be redone in a correct manner, but it was not shown that Churchwell Brothers ever directed the manner or method of how the laths should be erected. Sidney Churchwell testified that he never told any of Bennett's employees to re-erect an improperly erected lath because he did not feel that he had a right to tell them; that he would request that it be done. The evidence showed that on these occasions Churchwell Brothers were merely requiring certain definite results in conformity to the lathing contract. See Poss Bros. Lumber Co. v. Haynie, 37 Ga. App. 60 (3) ( 139 S.E. 127). Churchwell Brothers Construction Company had the right to require that the lathing work be done in a satisfactory manner. Their plasterers at times were immediately following the lathers, and if the lathing had been improperly erected, and one of the Bennetts was not present, they had the right to call attention as to the improperly erected lathing to whoever represented the Bennetts so that it could be corrected in order not to hold up the plasterers. And this did not amount to directing the time, manner, and method of the lathing work. The claimant contends that the fact that Churchwell Brothers hired a man to assist in the lathing work showed that they exercised such control over the work as to render that company the employer of Bennett and the claimant. The contention is without merit. The evidence showed that the hiring was done on behalf of Bennett. Bennett did not ratify this hiring, as was evidenced by the fact that he fired the man upon his return to the job and his discovery of the hiring, paying the man for the two hours he had worked. The contention that the man was an employee of Churchwell Brothers Construction Company is inconsistent with Bennett's firing of him. The evidence demanded a finding that the claimant and Bennett were not employees of that company, and demanded an award against B. F. Bennett as an individual.
3. The court did not err in affirming that part of the award which dismissed the claim as to Bennett Stauffer Plastering Company and St. Paul-Mercury Indemnity Company. While the partnership of Bennett Stauffer was dissolved on January 3, 1950, and the coverage of the partnership by St. Paul-Mercury was changed from the partnership to Ray H. Stauffer individually, by consent of both partners, it is contended that, because the Workmen's Compensation Board was not notified of the change and because the records of the board still showed that the coverage was that of the partnership, St. Paul-Mercury was liable to the claimant for compensation. Assuming for the sake of argument that, because of its failure to notify the board of the change in coverage, St. Paul-Mercury was still liable under its original coverage agreement with the partnership of Bennett Stauffer, such coverage would only apply to those employees of the partnership and would not apply to employees of Bennett as an individual. The evidence plainly showed that at the time of the injury the claimant was an employee of Bennett individually and not of the partnership. In the absence of an express stipulation otherwise, workmen's compensation-insurance coverage of a partnership relates only to the employees of the partnership and not to an employee of one of the partners whose employment is in no way connected with the partnership business.
4. The claimant further contends that the award against Churchwell Brothers Construction Company was authorized under Code § 114-112. We cannot and do not now rule on whether that company and its carrier are liable for compensation under this Code section. The award was based on the finding that the claimant was an employee of Churchwell Brothers Construction Company, and not under authority of Code § 114-112, and our ruling here concerns only that theory upon which the award was based.
The court did not err in affirming that part of the award which dismissed the claim as to Archie R. Briggs Construction Company, Standard Accident Insurance Company, Glens Falls Indemnity Company, Bennett Stauffer Plastering Company, and St. Paul-Mercury Indemnity Company.
The court erred in affirming that part of the award which relates to Churchwell Brothers Construction Company and Employer's Liability Assurance Corporation.
So much of the judgment as relates to Archie R. Briggs Construction Company, Standard Accident Insurance Company, Glens Falls Indemnity Company, Bennett Stauffer Plastering Company and St. Paul-Mercury Indemnity Company is affirmed. That part of the judgment which relates to Churchwell Brothers Construction Company and Employer's Liability Assurance Corporation is reversed.
Judgment affirmed in part; reversed in part. Sutton, C.J., and Worrill, J., concur.