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CUSTER, Judge.
Workmen's compensation. Fulton Superior Court. Before Judge Pharr.
269 (2) (73 SE 376); Cooper v. Lowery, 4 Ga. App. 120 (60 SE 1015); Samples v. Shaw, 47 Ga. App. 337 (170 SE 389); Cowart v. Jordan, 75 Ga. App. 855 (44 SE2d 804). There is some evidence here authorizing the award of the board that the deceased was an employee of Johnson, both from the fact that the regular driver was authorized to obtain substitute drivers and from the fact that Johnson himself was aware that the deceased was driving and paid him a part of his money for the trip, thereby ratifying the act.
While it is true (see Howard v. Georgia Power Co., 49 Ga. App. 420 (6), 176 SE 69) that one who merely works for an employee and receives his compensation solely from the employee is not an employee of the employer within the meaning of the Workmen's Compensation Act, nevertheless, the facts shown here, especially in view of the absence of any testimony by the defendant and his failure to produce his employment records, fail to demand a finding to such effect in this case.
2. There being some evidence to support the award, the judge of the superior court erred in entering up a judgment of reversal.
(Emphasis supplied.) We had no intention of approving this language which, relating as it does to some future action, we do not construe as assessing a penalty at the time of its rendition but merely of indicating an intention to do-so in the future. That such action would be illegal is obvious. Under our Constitution, Art. I, Sec. I, Par. IV (Code Ann. 2-104) no person may be deprived of the right to prosecute or defend his cause in any of the courts of the State. "Although the right of appeal is wholly statutory, it is available to any party who comes within the statute granting the right, and cannot be denied or abridged by the courts except as authorized by the statute." 4 C.J.S. 539, Appeal and Error, 167. A constitutional power can not be used to obtain an unconstitutional result (McIntyre v. Harrison, 172 Ga. 65 (4b), 175 SE 499), and the statutory power of the Board of Workmen's Compensation to assess penalties can not be used as a sort of duress to prevent the losing party from prosecuting an appeal. Even though the assessment of penalties would be otherwise proper, it cannot be conditioned upon a failure to appeal. Since both sides conceded this fact in argument before this court, and the claimant as a matter of fact expressly prayed that the penalty provisions be stricken, it is only necessary to point out that any order assessing penalties and attorney fees as a punishment for the defendant's exercise of its statutory right of appeal would be absolutely void.
T. M. Allen, Jr., T. J. Long, Ben Weinberg, Jr., contra.
William F. Woods, for plaintiff in error.
Friday May 22 22:53 EDT

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