Murray v. McConnell , 66 Ga. App. 868 ( 1942 )

This being an application for compensation for the death of the claimant's son which resulted from his being drowned, which, it was alleged, was an accident arising out of and in the course of his employment by Cherokee Lodge, and it appearing from the evidence that less than ten employees were regularly employed by Cherokee Lodge, and it not appearing that by any agreement between the employer and the employees there was an election by which they came under the workmen's compensation act, and it appearing that Cherokee Lodge was a separate and distinct business from Camp Cherokee, and was operated separately and distinctly, notwithstanding there were regularly employed by both Cherokee Lodge and Camp Cherokee ten employees, the Industrial Board was authorized to find that the claimant was not entitled to compensation, because as many as ten employees were not regularly employed at Cherokee Lodge.

DECIDED MARCH 17, 1942. Daisy Murray filed a claim for compensation for the death of her son against Mrs. W. R. McConnell, Camp Cherokee For Boys, a corporation, and Cherokee Lodge, not a corporation. The director of the Industrial Board denied compensation. On appeal to the superior court this finding was affirmed. To this judgment the claimant excepted.

It appears from the evidence that the claimant's son, while in the employ of Cherokee Lodge, was drowned, and that such was an accident which the claimant claimed arose out of and in the course of the employment. It appears undisputed that Cherokee Lodge, for which the claimant's deceased son was working at the time of his death, did not have regularly employed as many as ten men. As against Cherokee Lodge alone there would be no right to compensation under the workmen's compensation act. In order to establish the fact that the employer of the deceased son had regularly employed ten or more employees which, as respects the number of employees, would bring the case within the compensation act, it would be necessary to establish that Cherokee Lodge and Camp Cherokee constituted one enterprise or business, and together employed ten employees.

It appears from the evidence that Camp Cherokee, by which the claimant's son was not employed, was a corporation, and, as contended by the claimant, was owned by Mrs. W. R. McConnell, who operated it and owned all the funds derived from its profits and suffered all the losses, if any, from its operation. It also appears that while Mrs. McConnell was the sole owner and operator of Camp Cherokee she had contracted to buy and was buying Cherokee Lodge, which was a group of houses across an arm of a lake from Camp Cherokee, where people, including the parents of boys located in Camp Cherokee, were entertained. It is contended by the claimant that Mrs. McConnell had bought Cherokee Lodge with the "corporate funds" of Camp Cherokee. While Mrs. McConnell testified that she was buying Cherokee Lodge, that she had nothing to do with the operation of it but that her daughter operated it, it is insisted by the claimant that Mrs. McConnell collected the moneys from the operation of both Camp Cherokee and Cherokee Lodge, and placed them in her bank account; that she signed all the checks, suffered all the losses, and gained all the profits arising from the operation of both Camp Cherokee and Cherokee Lodge. It is insisted by counsel for the claimant in his brief filed in this court as follows: "We claim that because Mrs. McConnell owned the corporation and owned the lodge in her own name, paid for by corporate funds, that Cherokee Lodge belonged to Mrs. McConnell's corporation by operation of law, `equity regarding that as done which ought to be done.' In other words, Mrs. McConnell purchased Cherokee Lodge with corporate funds, and `equity regarding to secure the payment of the above-named amounts to each of the said named parties, and is conveyed to them in proportion to the several amounts of their respective claims, each of them holding said land to secure said named debts as coequals and without any priority of one over the other, and the interest of each under this deed, and over the property covered thereby, is in proportion to the amount of his claim relatively to the whole indebtedness hereby secured."

It will be thus seen that the deed by its express terms provides that each of the grantees shall have an undivided interest in the property, in the proportion that his debt bears to the whole; but we have reached the conclusion that these provisions were intended to restrict the interest of the several grantees among themselves, and that the deed, construed as a whole, discloses an intention on the part of the grantor, as between himself and the grantees, to convey to each of them the entire property as security for his debt, the right of each to satisfaction of his debt out of the property to be subject to a like right in the others in the proportions stated. It seems to us that such an intention is especially evidenced by that provision in the deed that each of the grantees was to hold "said land to secure said named debts as coequals, and without any priority of one over the other." If it had been the purpose of the grantor to convey to each only a distinct undivided interest in the land in the proportions marked out, he would have hardly felt it necessary to insert this provision, while, on the other hand, such a provision would have been perfectly proper and consistent if he meant to convey the described land to each of the grantees, but with the right of each to satisfaction of his debt out of the land, as between themselves, limited to a proportionate interest as fixed therein. It is a fundamental rule that in the construction of contracts every provision is to be considered, and, if possible, given effect. Code, § 20-704 (4);Simpson v. Brown, 162 Ga. 529 (134 S.E. 161); Spooner v.Dykes, 174 Ga. 767 (163 S.E. 889). It is also true that if there be any doubt as to the true meaning of the provisions, it should be taken most strongly against the party executing the contract, in this instance the grantor. Code, § 20-704(5);Harris v. Hull, 70 Ga. 831, 841. The deed recites that it is given in consideration of the sum of $8084; which is the total amount of the debts held by the grantees; and we do not deem it act, the plaintiff was not entitled to compensation.

The judge did not err in affirming the finding of the Industrial Board.

Judgment affirmed. Sutton and Felton, JJ., concur.