DIETRICH v. TRUST COMPANY BANK OF AUGUSTA, 179 Ga. App. 330 (1986)

346 S.E.2d 107

DIETRICH v. TRUST COMPANY BANK OF AUGUSTA.

71932.Court of Appeals of Georgia.
DECIDED JUNE 9, 1986.

BEASLEY, Judge.

This is an action against the bank for wrongful repossession of plaintiff’s automobile. The bank defended primarily on the basis that Booth, who actually repossessed the automobile, was an independent contractor and not subject to the bank’s control. The bank’s motion for summary judgment predicated on the fact it was not responsible for Booth’s actions was granted and plaintiff appealed.

In determining whether an employer-employee or independent contractor relationship existed, “the test to be applied . . . lies in whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract.” Zurich Gen. Accident c. Ins. Co. v. Lee, 36 Ga. App. 248 (1) (136 S.E. 173) (1920). OCGA §§ 51-2-4 and 5.

If one is employed generally to perform certain services it may be inferable that the employer retained the right to control the manner, method and means for performance of the contract Swift Co. v. Alston, 48 Ga. App. 649, 651 (173 S.E. 741) (1933). However, where there is a specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the right of control was not retained and an independent contractor relation existed. Smith v. Poteet, 127 Ga. App. 735, 737 (195 S.E.2d 213) (1972).

In considering the burden of proof on motion for summary judgment

Page 331

in Withrow Timber Co. v. Blackburn, 244 Ga. 549, 551
(261 S.E.2d 361) (1979), the Supreme Court observed that the bare denial of the existence of the employer-employee relationship, “made by a purported party to the relationship, is a statement of fact sufficient to support a motion for summary judgment in an action based on the doctrine of respondent superior.” In such circumstances the adverse party may not rest on his pleadings but by response must set forth specific facts revealing a genuine issue for trial. Exhibiting the mere possibility of a control situation falls short of the “specific facts” required Blackburn, supra. Accord Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 779 (257 S.E.2d 186) (1979).

This is exactly what transpired in the instant case. Booth’s deposition stated that he was an independent contractor with relation to the bank and unequivocally denied the existence of an employer-employee relationship. Dietrich introduced no direct proof to contradict this. In such posture, the bare possibility that the Bank might have retained some control (raised only by the circumstances) was not sufficient to prevent summary judgment for the Bank. See Brewer v. Southeastern Fidelity Ins. Co., 147 Ga. App. 562 (249 S.E.2d 668) (1978).

Judgment affirmed. Benham, J., concurs. Deen, P. J., concurs in the judgment only.

DECIDED JUNE 9, 1986.
Wrongful repossession. Richmond Superior Court. Before Judge Pierce.

Jack E. Boone, Jr., for appellant.

Neal W. Dickert, for appellee.