COASTAL TIMBERLANDS. INC. v. Brown

Webb, Judge.

This is a workmen’s compensation case in which appellant Coastal Timberlands, Inc., alleged to be the employer of the deceased timber producer, contends that the decedent was an independent contractor since he hired and paid his own crew, used his own equipment, purchased his own supplies, was paid by Coastal a certain amount per thousand board feet produced without deduction for social security or withholding taxes, and in general "ran his operation as he pleased,” the only specifications of Coastal being as to the size of the timber to be cut and the area to be cut from on land leased by Coastal.

The board nevertheless made a finding of fact that an employer-employee relationship existed between Coastal and the decedent, and Coastal assails that finding in enumeration of error 2 on the ground that "there was no competent evidence to support a finding of fact that an employer-employee relationship existed between Coastal Timberlands, Inc. and E. J. Brown.”

This challenge to the findings is developed in Coastal’s brief with further charges of "no evidence whatsoever,” "no testimony at the hearing,” "no competent evidence whatsoever,” "no competent evidence,” "findings of fact is not supported by competent evidence and, in fact, is contrary to the evidence,” and "discrep*801ancies in the testimony and the findings of fact.”

To this claim of no evidence appellee has failed in her brief to comply with this court’s Rule 18 (c) (3) (iv) (Code Ann. § 24-3618 (c) (3) (iv)): "In defending against a contention that certain findings, rulings, or other matters are not supported by any evidence, counsel shall, by references to particular pages of the transcript, point out where supporting evidence may be found.” In an effort to reach the issues of this case on its merits, however, we have without benefit of the required references carefully reviewed the transcript of testimony before the administrative law judge, and we fail to find any supporting evidence to take the case out of the rule enunciated in Lyons v. Employers Mut. Liab. Ins. Co., 127 Ga. App. 268, 278 (193 SE2d 244) (1972).

Coastal did instruct Brown as to boundaries of the tract from which timber was to be removed, tell him when Coastal wanted hardwood rather than other types of timber, and to which lumber yard the timber was to be delivered. Apparently Coastal also let Brown have one of its saws. On the other hand, Brown was free to cut or not cut as he chose, paid his own employees, furnished his own equipment other than the saw that he had borrowed from Coastal, used his own truck, paid for his gas and operating expenses, and was free to cut and sell timber from property other than that which he had contracted with Coastal to cut. Coastal paid him by the unit according to its agreement, made no deduction for social security taxes, and never treated him as an employee. Brown described himself as "self-employed” when he was admitted to the hospital following his injury. We find no basis for holding that there was a relationship of master and servant, but rather that there was a relationship between Coastal and Brown of employer-independent contractor. The record contains no evidence to support a conclusion that Coastal controlled or attempted to control the activities of Brown beyond that to which it was entitled under the terms of its understanding with Brown, and there was never in any wise an inconsistency with the relationship of employer-independent contractor.

Judgment reversed.

Bell, C. J., Marshall, Smith, and Shulman, JJ., concur. Deen, P. J., Quillian, P. J., and *802 McMurray, J., dissent. Argued January 7, 1977 Decided March 16, 1977 Rehearing denied March 31, 1977 Jones, Jones & Hilburn, James V. Hilburn, for appellant. Denmark Groover, Jr., for appellee.