Home Indemnity Co. v. Hernlen

Carlisle, Judge. The claimant, John P. Hernlen, was an employee of a proprietorship operated by his father under the name of “Wirtz and Hernlen.” The claimant’s father died, and under the provisions of his will the claimant and his brother, Geddes Hernlen, were made trustees of the estate and expressly empowered as such to continue the operation of [861] the proprietorship and to pay the profits thereof into the trust for the purpose of providing an income for the claimant’s mother. The claimant, though a trustee charged with the operation of the aforesaid proprietorship business and with the management of other trust properties, worked for a salary or wages as an employee of the proprietorship. The claimant’s wages were reported to the defendant insurance company along with other wages and salaries paid to other employees of the business as a basis for computation of the premiums paid by the proprietorship on the policy of workmen’s compensation provided by the defendant insurance company. The claimant was injured while working in the shop of the proprietorship as a mechanic, and while engaged solely in his duties as an employee of the proprietorship. Held: Decided December 4, 1959 Rehearing deniedDecember 17, 1959. Smith, Field, Doremus & Bingel, Herbert A. Bingel, Bichard D. Carr, Charles L. Drew, for plaintiffs in error. Harris, Chance, McCracken •& Harrison, Otis W. Harrison, contra. Under the facts stated and under the provisions of Code § 114-607, the defendant insurance company was estopped to contend that the claimant was not an employee of the proprietorship and entitled to workmen’s compensation when he sustained an injury arising out of and in the course of his employment. Pasler v. Maryland Cas. Co., 97 Ga. App. 263, 265 (103 S. E. 2d 90). It follows that-the judge of the superior court did not err in affirming the award of compensation to the claimant. Judgment affirmed. Gardner, P. J., and Townsend, J., concur.