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Workmen's compensation. Before Judge Forehand. Irwin Superior Court. May 23, 1953.
1. Decisions before the Board of Workmen's Compensation cannot be made upon affidavit in such manner as to preclude the opposite party from his right to cross-examine witnesses. However, courts are presumed, in the absence of evidence to the contrary, to decide issues in a legal, rather than an illegal manner; and, where the full Board of Workmen's Compensation exercises its prerogative of reviewing the record as presented to the hearing director, and thereafter reverses the award on the ground that a preponderance of the evidence demands a contrary conclusion, and where there is in the record evidence to support the finding of the full board reversing the original award, it will be presumed that the board acted on the record before it and not on the basis of affidavits attached to the appeal for the purpose of showing the evidence appellant expected to present under a prayer that the board remand the case for the purpose of taking additional testimony, such affidavits apparently not having been considered by the board at the time of its ruling.
2. The evidence was sufficient to authorize the full Board of Workmen's Compensation, reviewing the award of the hearing director, to conclude that the witness T. W. Harkins--who worked with the defendant under an arrangement by which he hired and paid his own crew and exercised his own judgment, and was paid a definite sum per thousand feet of sawing--was not an employee of the defendant but was an independent contractor, and that the defendant had fewer than ten men working for him at the time of the claimant's injuries.
Brownlee Burnette, the plaintiff in error in this workmen's compensation case, and herein referred to as the claimant, was employed by C. E. King, Jr., herein referred to as the employer, at a sawmill in Irwin County, Georgia, and was injured in an accident arising out of and in the course of his employment, which necessitated the amputation of three fingers. At the hearing before the single director the case narrowed to a consideration of the single issue of jurisdiction of the board, to be determined by whether or not the employer had less than ten regular employees at the time of the accident, in accordance with Code (Ann. Supp.) 114-107. The claimant testified there were eight employees including himself; claimant's brother, an employee, put the number at seven. In these totals the claimant included one Bo Silvers; his brother did not. The employer himself testified to having nine employees; however, after first testifying that Silvers was not in his employment at that time, he later named him as an employee. The documentary evidence, including time sheets and returns for income-tax and social-security purposes, showed nine employees, with Silvers not listed. Based upon this evidence, the single director found that Silvers was an employee, and awarded compensation. An appeal was filed with the full board, to which were appended numerous affidavits to the effect that Silvers was not working for the defendant at the time of the accident, and which prayed "that either this board fix a time for said additional hearing and permit its introduction in the case, or rem and to a single director for the purpose of taking the additional evidence as provided in Georgia Code Section 114-708." The Board of Workmen's Compensation, without remanding the case for the taking of additional testimony on this issue, passed an order as follows: "The board is of the opinion that a preponderance of the evidence demands a finding that one of the employees named by the deputy director in his findings of fact, to wit, Bo Silvers, was not in the employ of the defendant, C. E. King, Jr., at the time of the accident. The full board therefore finds as a matter of fact, after reviewing all of the evidence in this case, that the employer did not leave as many as ten employees."
This decision was appealed to the Judge of the Superior Court of Irwin County, and his judgment of affirmance is here assigned as error.
1. Counsel for the claimant properly contends that, both under general law and the rules of the Board of Workmen's Compensation, decisions cannot be made upon affidavit in such manner as to preclude the opposite party from his night to cross-examine witnesses. However, his further contention that the Board of Workmen's Compensation so acted, and reversed the findings of the deputy director upon the affidavits attached as exhibits to the appeal, instead of remanding the case for the taking of further testimony, is not supported by the record. The decision of the board recites that it has reviewed all of the evidence in the case, and that a preponderance of such evidence demands a finding that Silvers was not an employee. The affidavits were not evidence in the case, and there is nothing to raise the inference that they were treated as such. The evidence, although conflicting, amply supports the proposition that Silvers was not an employee at the time of the injury. The claimant's brother did not name him as such; the documentary evidence does not carry his name, and the employer's inclusion of him at one point in the testimony appears to have been a slip of the tongue which was elsewhere corrected. The full board may review the evidence taken before a single director and, based thereon, reverse the award in whole or in part, and its findings of fact, when supported by any competent evidence, are binding upon the courts. Code 114-708; Etheridge v. Liberty Mutual Ins. Co., 86 Ga. App. 369 (2) (71 S. E. 2d 526); Fralish v. Royal Indemnity Co., 53 Ga. App. 557 (2) (186 S. E. 567). The finding of fact in this case to the effect that Silvers was not an employee is supported by the evidence in the record.
2. It is further contended that T. W. Harkins was an employee of the defendant, and in fact he denominated himself as such. However, the uncontradicted testimony showed that Harkins worked under an arrangement with the defendant by which Harkins employed his own helpers, and cut logs for a stated price per thousand; that, using his crew, he also worked for other persons; that he hired his timber cutters and paid them by the day; and that Some logs were cut to the defendant's specifications and, as to others, he used his own judgment. In Irving v. Home Accident Ins. Co., 36 Ga. App. 551 (1) (137 S. E. 105), it was held: "Where the owner of timber furnishes a sawmill and employs another person to saw the timber into lumber, and pays him a definite sum per thousand feet for the sawing, which sum is paid in advancements as the lumber is sawed, and where from the money advanced the person so employed pays all the help employed in the work, and the difference between the sum advanced and the expense of operating the sawmill constitutes his profits, and where he has exclusive power to control the help and to fix their compensation, and to hire and discharge the help at his discretion, and where he cuts and saws the lumber into merchantable products under specifications given to him from time to time by the owner as the owner receives orders for the lumber, and where he saws the trees into lumber of such dimensions as in his judgment the trees will make, he is not a servant of the owner, but is an independent contractor." See also Zurich Gen. Accident &c. Co. v. Lee, 36 Ga. App. 248 (136 S. E. 173), and Maryland Casualty Co. v. Radney, 37 Ga. App. 286 (139 S. E. 832). In Love Lumber Co. v. Thigpen, 42 Ga. App. 83 (155 S. E. 77), a similar case in which the holding was to the contrary, these cases were held distinguishable. The relation of master and servant was also held to exist in Ocean Accident & Guarantee Corp. v. Hodges, 34 Ga. App. 587 (130 S. E. 214). In all of these workmen's compensation cases, judgments of affirmance were supported. The dividing line between the independent contractor and the master-servant relationship is often thin and tenuous. It appears in the present case that there was a definite contract, or rather, a series of them--at one point a new agreement was reached for a thousand feet of lumber, and at another the defendant, who had furnished the equipment, appears to have agreed to pay repairs himself, although repairs were in the first instance to have been paid by Harkins. There is sufficient evidence to support the finding of the full board that Harkins was an independent contractor, and it is obvious that the board came to this conclusion when it determined, "after reviewing all the evidence in the case," that the employer did not have as many as ten employees. This is a sufficient finding of fact, and the award is not objectionable on the ground that it does not contain a sufficient statement of facts.
The judge of the superior court did not err in affirming the award of the full board, which denied compensation to the claimant.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
Ingram & Tull, contra.
John D. Edge, for plaintiff in error.
Saturday May 23 04:02 EDT

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