49 Ga. App. 420 | Ga. Ct. App. | 1934
Lead Opinion
1. While, as a general rule, allegations of fact are to be construed most strongly against the pleader, yet, in the absence of a special demurrer, where the facts alleged in a petition are such as would be proper and adequate to support one form of action, but inadequate, although appropriate, to another form of action, and where the petition is ambiguous to the extent that the pleader’s intention is not clearly manifest as to which form of action is relied upon, the courts in such a case, -in endeavoring to ascertain the plaintiff’s intention, will prima facie presume that his purpose was to serve his best interest, and will construe the pleadings so as to uphold and not to defeat the action. Stoddard v. Campbell, 27 Ga. App. 363 (3) (108 S. E. 311), and cit.
2. A person employed and paid by a servant as a temporary substitute, with the express.or implied knowledge of the master or with a subsequent ratification by the latter, is entitled to the same protection against injury while engaged in the master’s work as the regular servant, even though the substitute may not be entitled to recover wages from the master. Spivey v. Lovett, 48 Ga. App. 335 (172 S. E. 658); Payne v. Rivers, 28 Ga. App. 28 (3) (110 S. E. 45).
3. While the petition in this ease is somewhat ambiguous in its averments as to whether the plaintiff’s husband, for whose death from the explosion of a compressed-air sand-tank she sues, was working on the tank as an employee of the defendant, or merely as a temporary substitute for a regular servant of the defendant with its knowledge and consent, yet, the plaintiff having offered an amendment at the trial to accord with her evidence and clarify the ambiguity by clearly alleging that the deceased was working as such a substitute with the knowledge and consent of the defendant, and not as its employee, it was error to disallow this amendment. Even without such amendment, the pleadings being sufficient, under the rule stated above in paragraph 1, and the evidence sufficing to authorize a finding not only that the deceased was working as a temporary substitute for a regular servant of the defendant, but that the defendant had knowledge thereof and was directing his work through its foreman in charge of the sand car, which was being filled with sand from the tank causing the homicide, since the foreman, under the testimony of the regular servant, was “the boss of the work there’’ on which he and the deceased were engaged, and, under other testimony, was actually directing the deceased, a nonsuit was not proper upon the ground that the defendant owed no duty to the deceased other than that owed to a mere trespasser.
5. The court did not err in excluding as immaterial the transcript of testimony and award of the Department of Industrial Relations on a previous application by the plaintiff to that department, denying compensation to her on the ground that the deceased was not an employee of the defendant; the purpose of the evidence being to show that the defendant, inconsistently with its position in this case, had in the previous proceeding insisted that the deceased was not its employee. This evidence was irrelevant. The record of the previous proceeding, while showing the award, fails to indicate what position was taken by the defendant or its counsel. But even if the former record showed that the
G. The workmen’s compensation act makes no provision for relief to a mere substitute for an employee receiving compensation from the employee and not from the employer, and there is no merit in the contention of the defendant that the trial court was without jurisdiction of the suit, because the sole remedy was an application for relief to the Department of Industrial Relations; the claim of the plaintiff being based on the theory, not that the deceased was an employee, but that he was a temporary substitute working for an employee with the knowledge and consent of the employer.
Judgment reversed.
Rehearing
ON MOTION EOR REHEARING.
In contending that the trial court properly granted a nonsuit, the motion for rehearing raises two questions: (1) whether there was sufficient evidence to show express or implied knowledge by the defendant company that the deceased was working as a substitute for the regular employee whose place he took; and (2) whether there was sufficient evidence to show that the person in charge of and operating the sand-car, whose explosion caused the death, was foreman in charge of the work in which the deceased was engaged, and was a person whose knowledge and acts could render the company liable for the death of the deceased workman. In Van Treeck v. Travelers Insurance Co., 157 Ga. 204 (3), 206 (121 S. E. 215), the Supreme Court held that, under section 23 of the workmen’s compensation act, providing that written notice of an accident must be given to an employer, “unless it can be shown that the employer, his agent or representative, had knowledge of the accident, . . a foreman in charge of the special work in which the employee is engaged is an 'agent’ or ‘representative’ within the meaning of said section.” The man in charge of the employee in that case was “his immediate superior, the foreman in charge of his special work.” Decisions un
Rehearing denied.