28 Ga. App. 24 | Ga. Ct. App. | 1921
(After stating tlie foregoing facts.) The allegations of the petition show that the plaintiff was a volunteer, and, in undertaking to render a voluntary service to the employee of the defendants who was operating the gin, he did so at his own risk. These allegations, most favorably considered, show that Williams, who was in charge of the gin, was operating it simply as an employee of the defendants, and, as such employee, had no authority to employ assistance. It was insisted that the plaintiff was not merely a volunteer, that he was at the gin in compliance with an invitation of the owners thereof, the defendants, and that he was therefore a licensee with an interest; that in addition an agent of the defendants, who, at the time was in charge of the gin, requested him to assist; that Williams, the employee, being in sole charge of the gin, was the alter ego of the defendants, and the defendants were liable for the acts of Williams. There are some authorities which sustain the view here presented, but we think the question is controlled by decisions of this court and of the Supreme Court adverse to the position of learned counsel for the plaintiff in error. While there are some general statements in the petition which would indicate that Williams was acting as vice-principal of the defendants, there are no facts alleged which would justify that conclusion; the only facts alleged being that he was operating the gin in the absence of the defendants as their employee. It is alleged that the plaintiff was invited to take his cotton to the gin for the purpose of having it ginned, but this invitation was not broad enough to authorize him to intermeddle with the operation of the gin at the request of Williams, and when he did so he was acting voluntarily and at his own risk.
“ To create the relation of master and servant, there must be some contract or some act on the part of one person which expressly or impliedly recognizes another as his servant.” Atlanta & West Point R. Co. v. West, 121 Ga. 641 (1) (49 S. E. 711, 67 L. R. A. 704, 104 Am. St. Rep. 179). So far as appears from the petition, the owners of this gin were guilty of no breach of any duty to the plaintiff; and there can not be a legal liability except upon a breach of some legal duty. "Where a volunteer engages in work undertaken in compliance with an unauthorized request of an employee of the defendant, the latter owes him none of the obligations of a master toward a servant, but is only bound to use
The allegations .of the petition are not sufficient to show such an emergency as would authorize the plaintiff voluntarily to interfere and undertake the risk of working with the dangerous revolving-machinery. The fact that an employee in charge of the gin requested him to do so did not warrant him in doing so. Certainly his act was not one the responsibility for which he could legally impose upon the owners of the gin, who were under no obligations whatever to him in so far as his meddling with the machinery was concerned. The relation of master and servant was not created by this unauthorized request of the employee in charge of the gin. The invitation extended to the plaintiff by the owners of the gin was to bring his cotton there for the purpose of having it ginned, and certainly such invitation was not sufficient to justify him in undertaking to help in the operation of the gin.
Under the decisions in Atlanta & West Point R. Co. v. West, and Central of Georgia Ry. Co. v. Mullins, supra, we think the judgment sustaining the demurrer and dismissing the petition should be affirmed, u
Judgment affirmed.
