Opinion
47315.
ARGUED JULY 6, 1972.
DECIDED OCTOBER 14, 1972. REHEARING DENIED NOVEMBER 14, 1972.
Action for damages. Fulton Superior Court. Before Judge Etheridge.
Johnston McCarter, John M. McCarter, Ralph E. Carlisle, for appellant.
Troutman, Sanders, Lockerman Ashmore, Robert L. Pennington, Jeffrey R. Nickerson, Dennis Fain, Douglas Dennis, for appellees.
In determining whether an employer-employee or independent contractor relationship existed, the test is not whether the employer did in fact control and direct the employee in the work, but it is whether the employer had that right under the employment contract. Absent a showing of the provisions of the instant contract, the defendant failed to establish as a matter of law that it was not liable because the work which damaged the plaintiff was performed by an independent contractor.
ARGUED JULY 6, 1972 — DECIDED OCTOBER 24, 1972 — REHEARING DENIED NOVEMBER 14, 1972.
L. P. Moon brought an action in Fulton Superior Court against Georgia Power Company. The complaint alleged that the plaintiff was owner of certain realty in Fulton County traversed by a creek; that defendant constructed a power transmission line on property adjacent to plaintiff's land and in so doing constructed a service road which dammed up the creek, causing water to overflow and cover plaintiff's property, thereby damaging the plaintiff; that the defendant also cut down a large row of trees and left them on the plaintiff's property. It was further alleged that the defendant's acts were wanton and wilful and in bad faith. Based on this, beside general damages, the plaintiff sought to recover punitive damages and attorney's fees.
The defendant Georgia Power filed an answer in which it denied the material allegations of the plaintiff's complaint and further set out that the work in question was performed by an independent contractor, Commonwealth Electric Company, and that it and not defendant Georgia Power would be liable. The defendant Georgia Power further brought a third-party complaint against Commonwealth Electric Company.
The case came on for trial before a judge and a jury. At the close of the plaintiff's evidence the court directed a verdict in favor of the defendant Georgia Power on issues of punitive damages and expenses of litigation. At the close of all the evidence on motion of the defendant, the court directed a verdict in favor of the defendant Georgia Power on the issues of its liability for compensatory damages. The court further allowed the plaintiff to amend its complaint to assert a claim against the third-party defendant Commonwealth Electric Company, but as to such defendant declared a mistrial.
Appeal was taken from the order and judgment entered in the case. The plaintiff enumerates as error the direction of the verdict for the defendant on the question of punitive damages and attorney's fees, and on the question of compensatory damages. It also contends that the court erred in refusing to admit certain documentary evidence and in excluding certain other evidence.
1. The defendant Georgia Power set out in its three defenses to the complaint that: "Such work as was done at or near the area described in the complaint was done by employees of Commonwealth Electric Company, a corporation of the State of Delaware, as an independent contractor under the terms of an agreement entered into between Commonwealth Electric Company and Georgia Power Company, dated August 8, 1966." Also in its third-party complaint brought against Commonwealth Electric, Georgia Power alleged that it entered into a contract with Commonwealth Electric who acted as an independent contractor and agreed to do certain construction work with regard to Georgia Power's transmission facilities; that Commonwealth Electric was constructing the facilities near the location set forth in the complaint pursuant to said contract; that under the terms of the contract Commonwealth Electric agreed to indemnify Georgia Power for damage to property arising out of the performance and prosecution of work under the contract.
During the trial of the case, agents and employees of Georgia Power testified that Commonwealth Electric constructed the transmission lines and the road; that no Georgia Power employees participated in the construction of the lines or in the clearing of the right of way, although they were involved in the inspection of the work performed by Commonwealth Electric. One of the employees of Georgia Power testified that although he performed inspection work he did not tell Commonwealth personnel how to do a particular piece of work or where to locate the towers or the placement of the wires and conductors. This evidence would tend to show that Georgia Power did not exercise immediate direction and control of Commonwealth Electric. However, the contract between Georgia Power and Commonwealth Electric was not a part of the pleadings and is not found in the transcript of evidence.
In the recent Supreme Court case of Golosh v. Cherokee Cab Co., 226 Ga. 636, 638 ( 176 S.E.2d 925): "`Where one is employed generally to perform certain services for another, and there is no specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the employer has retained the right to control the manner, method and means of the performance of the contract, and that the employee is not an independent contractor.' The test is not whether the employer did in fact control and direct the employee in the work, but it is whether the employer had that right under the employment contract." See Gulf Life Ins. Co. v. McDaniel, 75 Ga. App. 549, 555 ( 43 S.E.2d 784); Travelers Ins. Co. v. Moates, 102 Ga. App. 778 ( 117 S.E.2d 924); Barbree v. Shelby Mut. Ins. Co., 105 Ga. App. 186, 188 ( 123 S.E.2d 905).
In absence of the contract or its provisions, Georgia Power failed to establish that it did not have the right to direct and control Commonwealth Electric. Thus, evidence failed to prove as a matter of law that the relationship of an independent contractor existed between Georgia Power and Commonwealth Electric. The trial judge erred in directing a verdict for Georgia Power.
2. Appellant contends that the court erred in directing a verdict on the question of attorney's fees and punitive damages. This contention is predicated on two grounds: one, that the trial judge erred by stating, "I understand there will be no basis for attorney's fees unless punitive damages will be indicated here I take it," two, that questions involving imposition of punitive damages are always for the jury.
"Attorney's fees as expenses of litigation are not punitive or vindictive damages, but stand alone, are regulated by Code § 20-1404, and the jury may allow them if the defendant has acted in bad faith in the transaction out of which the cause of action arose." Williams v. Harris, 207 Ga. 576 (3) ( 63 S.E.2d 386). See Busbee v. Sellers, 71 Ga. App. 26, 28 ( 29 S.E.2d 710); Mosely v. Sanders, 76 Ga. 293 (3); Bowman v. Poole, 212 Ga. 261 (3) ( 91 S.E.2d 770). Moreover, ordinarily the question of imposition of punitive damages is for the jury. However, the controlling question in a situation of this sort is whether there was any evidence to support an award under Code § 105-2002 (punitive damages) or § 20-1404 (attorney's fees). Absent wilful misconduct, malice, fraud, wantonness or oppression, there can be no recovery of punitive damages. Hubbard v. Ruff, 97 Ga. App. 251 ( 103 S.E.2d 134); Southern Railway Co. v. Davis, 132 Ga. 812 ( 65 S.E. 131). In order to recover under Code § 20-1404, it must be shown that the defendant was stubbornly litigious, put the plaintiff to unnecessary trouble and expense, or acted in bad faith. We are cited no evidence by the plaintiff to show that the requirements of Code § 105-2002 or § 20-1404 were met. Indeed, taken in a light most favorable to the plaintiff, the facts show that the defendant injured the plaintiff and did not remedy the situation satisfactorily to the plaintiff. This is not sufficient to authorize a verdict for the plaintiff either on punitive damages or attorney's fees. That being so, the trial judge did not err in directing a verdict for the defendant as to those issues.
3. The remaining enumerations of error are without merit.
Judgment reversed. Hall, P. J., and Pannell, J., concur.