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Workmen's compensation. Hall Superior Court. Before Judge Kenyan.
1. There is no coverage under the provisions of the Workmen's Compensation Act unless there is a relation of employer and employee. Parker v. Travelers Ins. Co., 174 Ga. 525 (163 SE 159). "In determining whether or not the relationship of master and servant prevails in a compensation case, the same principles that exist under the common law obtain." Travelers Ins. Co. v. Clark, 58 Ga. App. 115, 121 (197 SE 650). Where there is a relationship of independent contractor and contractee no coverage is afforded. Richards v. Marco Realty Co., 57 Ga. App. 242 (194 SE 880).
2. The facts in this case are strikingly similar to those in National Trailer Convoy, Inc. v. Undercofler, 109 Ga. App. 703, 709 (2) (137 SE2d 328), where it was held that "the status of these individuals, when viewed in the light of common law principles, was clearly that of independent contractor, and not that of employee." And see Poss Bros. Lumber Co. v. Haynie, 37 Ga. App. 60 (139 SE 127); Cooper v. Dixie Constr. Co., 45 Ga. App. 420 (165 SE 152); Durham Land Co. v. Kilgore, 56 Ga. App. 785 (194 SE 49); Lakey & Simpson v. Hightower, 57 Ga. App. 577 (196 SE 210); Malcom v. Sudderth, 98 Ga. App. 674, 686 (106 SE2d 367). We find no application of any erroneous legal theory in the award of the board denying compensation, and the judgment of the superior court reversing the award, which is amply supported by evidence must be
The findings upon which the award denying compensation was made were: "I find from the testimony of Mrs. Mary Parsley, widow of deceased, that she and deceased were married and had five minor children at the time of his death on April 17, 1963, that he was hauling poultry and owned his own truck and it was leased to Piedmont Sales Company, and he received checks from this company, and he was driving a truck leased to them at the time he was killed; that they lived in London, Kentucky, where her husband would come back from a trip about once a week; that on his return load he would haul grain; that he kept his own social security and income tax records, and records on the expense of the truck; that he hauled some grain for a trucking firm in London, Kentucky; that her husband and another man were co-owners of the truck; that after his death, she was paid for one half of the truck. That she signed the checks which her husband received from Piedmont Sales Company, and deposited them in his and the co-owners account.
"I find from the testimony of Robert A. Tate, General Manager and President of Piedmont Sales Company, that they are truck brokers; that they own no trucks and have no employees, other than in the office. That he made and negotiated a lease with the deceased in January of 1963, and he (deceased) signed it which is claimant's Exhibit #2, that he (witness) signed it; that when he was killed, he was on a trip that he (deceased) had selected from his (witness) company; that deceased was on a trip that he had brokered for a customer and his company agreed to furnish a truck with driver. That they have insurance which requires the drivers to obey laws, etc., and if any driver failed to comply, the insurance company would notify them that they could no longer insure this driver. That he had the right to disapprove a driver if he did not pass insurance specifications. That they paid the driver eighty-five percent of the revenue that the trucks earned; that on a trip they gave a driver the time they were to load and the time when the load was to be delivered. That they did not receive a portion of the truck's earnings on the south-bound trip. That they made part of the checks payable to Ralph Parsley, and part of them to Parsley and Dees. That originally Parsley and Dees came into his office and stated they owned the truck together. That Ralph Parsley hauled for other people. The owner of the truck handles the loading and unloading; that Mr. Parsley always called him and told him when he was available for a load.
"After careful review of the evidence, I find as a matter of fact that the deceased was killed on April 17, 1963, while driving a truck owned by the deceased and his partner, Jerry Dees, jointly, that the deceased was operating this truck under a lease agreement whereby, the truck was leased to the Piedmont Sales Company from Parsley and Dees.
"I further find that the truck was operated on a partnership basis and that the net profits were divided by the deceased and Dees.
"I further find that although the deceased did enter into a lease agreement with the Piedmont Sales Company, that the deceased customarily hauled goods for others during the period of the lease and could decline to accept a hauling trip; further that the deceased received no money unless he actually did make a trip.
"I further find that the deceased was an independent contractor because the employer had the right here merely to require definite results in conformity to the contract of hire rather than assuming the right to load goods at a certain time and to deliver them on schedule, the employer having no right to control the manner and means of this, such as the routes to take, stops to make, etc., and the Piedmont Sales Company had no control over the operation of the vehicle even though a standard form of Rules and Regulations were required by the insurance company.
"I further find that the payment of wages is mandatory to come under the Workmen's Compensation Act, and here it would be virtually impossible to determine wages, and must conclude here that the amounts paid went to the partnership and not to the deceased alone.
"I, therefore, find that the claim of Mrs. Mary Parsley, widow of the deceased, must be dismissed due to the fact that the deceased at the time of his death was operating the truck as an independent contractor and was not an employee within the meaning of the Workmen's Compensation Act."
Telford, Wayne & Greer, Dent Bostick, Robinson, Thompson, Buice & Harben, Sam S. Harben, for appellee.
Woodruff, Savell, Lane & Williams, John M. Williams, for appellants.
Friday May 22 20:13 EDT

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