34 Ga. App. 156 | Ga. Ct. App. | 1925
(After stating the foregoing facts.) We have considered carefully the demurrers to the amendment to the petition, and to the amendment to the answer (both subjects of the pendente
In this case we have what, prior to the passage of the workmen’s compensation act, would have been an anomalous situation, viz., the defendant seeking to be regarded as the master of the deceased who is alleged to have been negligently killed. The reason, however,' is obvious. Such a relation would bring the defendant under the workmen’s compensation act, thereby greatly reducing its liability, if not discharging it altogether, under the particular facts of this case. Several eases are cited in support of the proposition that, the Georgia Railway & Power Company was the master of the deceased at the time of his death; some of which we will discuss briefly. In the case of Brown v. Smith & Kelly, 86 Ga. 274 (12 S. E. 411, 22 Am. St. Rep. 456), Smith & Kelly were the general masters of the plaintiff, and one Dixon was the man for whom the plaintiff was working when he was injured by the negligence of a driver and fellow servant, and the court held that the driver was the special servant of Dixon for that occasion. In the opinion the court said: “We have seen from the evidence above quoted that Dixon had the exclusive- right to discharge this driver and employ another in his place. He had the right absolutely to control and direct the drivér. He had the right to iake-him from the mules and, put him at other work. In other words he had as ample and complete control over the driver as if he had originally hired him.” (Italics ours.) For the hirer to become the master of a servant under circumstances such as are now under consideration, the headnote of the Brown case states that the hirer
The Georgia Railway & Power Company paid the deceased nothing and was not liable to him for wages. While paying is not necessary to render one a master, paying is necessary to bring one within the workmen’s compensation act. The entire act contemplates that the compensation of the injured employee shall be fixed in proportion to his wages as applied to the particular injury. In the case of joint employers the act provides that “such employers shall contribute to the payment of such compensation in proportion to their wage liability to such employee.” If the defendant’s contention that it was the master of the deceased were correct, the defendant would be in position to say: “I am the master, and therefore not subject to suit at common law, because I am within the workmen’s compensation act; but since the Central Georgia Power Company hired and paid the deceased his wages, I have no wage liability, and am therefore immune from payment under the workmen’s compensation act also, even though my negligence resulted in his death.” In the case of Dale v. Saunders, 218 N Y. 59 (112 N E. 571, Ann. Cas. 1918B, 703), the court said: “Where an employer hires the services of his team and employee to another to haul sand, the employee is still working for the original employer when he is loading sand in a pit for the purpose of hauling it, and therefore is entitled to compensation from the employer.” In ofher words, the person for whom he is temporarily working is not the master under the New York workmen’s compensation act, which is similar to that of our State. Under the New York compensation act, as under our compensation act, there must be a contract of hiring and a provision for payment for services of the employee by the employer. See, in this connection, Chicago & Interurban Traction Company v. Industrial Commission, 282 Ill. 230 (118 N. E. 464); Moore v. Taylor, 97 Okl. 193 (223 Pac. 611); Skeels v. Hotel Co., 195
In the case of Postell v. Brunswick & Western R. Co., 112 Ga. 602 (37 S. E. 869), the plaintiff alleged that the Brunswick and Western Railroad Company was h’is master and that he was in its employ. The proof showed that the Central of Georgia Railway Company was his master and employer, and that the Brunswick & Western was the company for which he was working at the time of the injury; and it was this variance between the allegata and probata that caused the plaintiff’s case to fall. In that ease the plaintiE “got his pay through the Central, but any instructions they gave him at the Brunswick & Western office he had to follow,” and the Supreme Court held that the Brunswick & Western was not his master, “notwithstanding the fact that he was, when injured, doing the work of the defendant company,” the Brunswick & Western. 'As stated by the Supreme Court, the master (the original employer) “furnished him, as its servant, to the defendant company.” So it was in the ease under consideration; the Central Georgia Power Company furnished the decedent as “its” servant. There was no contractual relation between the decedent and the defendant company. The contract was between the defendant company and the Central Georgia Power Company, and under this contract the Central Georgia Power Company’s servant was to turn the switch. The facts in that case and the facts in the one under consideration are quite similar, and, under the ruling in that ease, the Georgia Railway & Power Company could not be considered the master in the instant .casé. The Postell ease is controlling also as to the liability of the defendant company in the instant case. In that case the court said:. “Relatively to the defendant company he was, while engaged in the work of coupling and uncoupling its cars, a licensee. He had the right, and it was his duty, under his contract with the’ Central company, to do this work for the defendant company [the Brunswick & Western], but he was employed to do it by the Central company, which furnished him, as its servant, to the defendant company for this purpose. Had he sued the defendant for injuries which he, as a licensee, received while attempting to couple cars forming a part of its train, his proof and his allegations would have corresponded, and if he showed that his injuries were caused by the defendant’s
In the light of all the elements necessary to make the defendant company the master in the instant case, the amendment to the answer did not constitute a legal defense to the plaintiff’s cause of action; and since, under the pleadings and the evidence, it could not have availed the defendant anything, its rejection by the court, even if error, was harmless. Carolina Portland Cement Co. v. Zuber, 39 Ga. App. 96 (113 S. E. 813).
The evidence authorized the verdict.
Judgment affirmed.