Nobles v. H. W. Durham & Co.

173 S.E.2d 200, 226 Ga. 134, 1970 Ga. LEXIS 462

• Court: Supreme Court of Georgia
• Decided: February 5, 1970
• Docket: 25554
• Status: Published

Opinions

Nichols, Justice.

Certiorari was granted in this case to review the decision of the Court of Appeals holding that the evidence submitted in connection with a motion for a summary-judgment demanded a finding that H. W. Durham & Company, Inc., was not a motor carrier as defined in Code Ann. Ch. 68-5. Nobles v. H. W. Durham & Co., 120 Ga. App. 418 (170 SE2d 764).

The evidence disclosed that Rayonier, Inc. would not purchase pulpwood except from designated sources, that H. W. Durham & Company, Inc. (hereinafter referred to as Durham) was one of these sources, that on some occasions Durham would contract with the landowners for permission to cut timber and with “producers” to cut and haul the pulpwood to Rayonier, that at other time the “producer” would locate timber to be cut and contract with the landowner, that normally in either event Durham would receive compensation from Rayonier for the pulpwood actually delivered and disburse the “stumpage charge” to the landowner and the “cutting and hauling charge” to the “producer,” that the “producer” would then pay the laborers and truck drivers from the amount paid him by Durham, keeping the remainder as his profit and that Durham also deducted workmen’s compensation and other insurance premiums from the amount paid the producers.

As to the arrangement between Durham and the co-defendant Branch the evidence disclosed that at the time of the collision out of which the action arose Branch had been cutting and hauling pulpwood to Rayonier for Durham for a period of years under an oral agreement that could have been canceled by either party without advance notice, that the particular timber being cut was located by Branch and an agreement as to the “stump-age” price worked out by him with the owner, but that Durham paid the owner the “stumpage charge” from each cord of pulpwood cut and delivered to Rayonier by Branch.

Inasmuch as the load far exceeded 18,850' pounds, the exemption contained .in Code Ann. § 68-502 (c) (2) is not applicable regardless of the question of the title of the pulpwood at the time of the collision.

The decisions in Malcom v. Sudderth, 98 Ga. App. 674 (106 SE2d 367), and Campbell v. Travelers Ins. Co., 100 Ga. App. 853 (112 SE2d 311), and the numerous cases there cited foreclose any question but that a finding would be authorized under the above evidence that Branch was not an independent contractor insofar as his relationship to Durham is concerned, and his obtaining a source for pulpwood would under such circumstances be an act for Durham and not for himself. This leaves the question of Durham’s relationship to Rayonier and to the owner of the timber to be considered in order to determine if a summary judgment that Durham was not a motor carrier and that therefore the Superior Court of Long County lacked venue of the defendant was demanded.

Under the evidence adduced in support of the motion for summary judgment, when pulpwood was delivered to Rayonier, the driver delivered with it a card issued by Durham as authority to deliver pulpwood to Rayonier. This card showed the name of the “dealer” — Durham, the name of the “producer”— Branch, the “stumpage source” — the owner of timber cut into pulpwood, the “zone” where the timber was grown (county), as well as the type of timber from which the pulpwood was produced, the truck number and the date and authorization signature of the “dealer.”

This card and the information contained thereon would not be conclusive as to title to the pulpwood being hauled, and there was no other evidence to show whether title to the pulpwood was in the owner of land until delivered to Rayonier or whether title was earlier transferred to Durham. Accordingly, the evidence submitted in support of the motion for summary judgment did not eliminate from issue the question of whether Durham was engaged in “controlling, operating or managing any motor propelled vehicle used in the business of transporting . . . property for hire over any public highway in this State . . .” and the fact that Durham may have provided labor to cut such timber into pulpwood as well as provided for the hauling of such pulpwood for the owner would not have the effect of removing the hauling activities from the provisions of Code Ann. Ch. 68-5, which language is definitely broader in defining motor carriers than various definitions used by textwriters generally in dealing with private carriers for hire.

The Court of Appeals erred in affirming the grant of the summary judgment by the trial court.

Judgment reversed.

All the Justices concur. Felton, J., concurs specially.