Manhattan Industries, Inc. v. Paul

191 S.E.2d 484, 126 Ga. App. 595, 1972 Ga. App. LEXIS 1227

• Court: Court of Appeals of Georgia
• Decided: June 16, 1972
• Docket: 47242
• Status: Published

Opinions

Deen, Judge.

Where the trial court overrules the defendant’s motion for summary judgment this court will not reverse unless from the entire record construed against the movant it appears that there is an absence of any genuine issue as to all material facts and that the defendant is entitled to a judgment as a matter of law. Atlanta Gas Light Co. v. Roberson, 120 Ga. App. 361 (170 SE2d 587). The sole issue presented to us is whether the injured plaintiff was an employee or independent contractor under a one-shot oral engagement to pick up a rental truck for the appellant and drive it to a designated location. Plaintiff was injured on the defendant’s premises prior to departure and while on his way to the front office to turn in the truck rental agreement. He was never carried on any of the defendant’s records as an employee, was never paid, and indeed there is evidence that the question of compensation was not discussed in advance. The plaintiff’s evidence indicates that he had no instructions beyond the place where the truck was to be delivered. Whether as an employee he is barred from recovery in a tort action because of contributory negligence, the fellow servant rule, or the exclusiveness of the remedy afforded by workmen’s compensation are all questions which must await the result of a trial.

Argued May 24, 1972— Decided June 16, 1972— Rehearing denied July 6, 1972. N. Forrest Montet, for appellant. T. J. Lewis, Jr., for appellee.

Judgment affirmed.

Clark, J., concurs. Eberhardt, P. J., concurs in the judgment only.