79 Ga. 588 | Ga. | 1887
The plaintiff in error brought his action against the defendant in error to recover damages which he alleged he received by reason of the careless and negligent manner in which the defendant had excavated her grounds adjoining the plaintiff’s building, whereby the plaintiff’s house was injured and damaged. The case went to trial, and a verdict was had for the defendant; and thereupon the plaintiff moved the court for a new trial, on several grounds.
We see no error in this charge. The code, §2962, declares : “ The employer is not responsible for torts committed by his employé when the latter exercises an .independent business, and in it is not subject to the immediate direction and control of the employer.” Another section (2963) declares that, “ by ratification of a tort committed for one’s benefit, the ratifier becomes liable as if he committed it; otherwise, if the act was done for the benefit of a third person.” There is no evidence in this record that the defendant ratified in any manner any action of the employé, McQilvray, which caused the injury to the plaintiff’s house; and hence the charge rests upon section 2962 of the code, and is correct.
The main objection to this part of the charge is upon the ground, that the defendant has no plea which authorizes it and upon which to base the charge. The complaint is not that the charge is not law, but that it should not have been given in this case, because there is no plea to warrant it. We think the plea of the general issue was sufficient to warrant the charge. It does not appear that the contractor was employed to do the work in the manner in which it was done, but it may be fairly inferred from the record that it was a lawful work, a work which could have been done in a lawful manner, so as to have caused no injury to the plaintiff as alleged in the declaration. Hence it is to be presumed that the employé was employed to do this work in a lawful manner, and not in a negligent and unlawful manner.
After a careful consideration of this record, we are of the opinion that the court committed no error in refusing a new trial.
J udgment affirmed.