37 Ga. App. 130 | Ga. Ct. App. | 1927
Lead Opinion
(After stating the foregoing facts.)
The principle announced in the first division of the syllabus requires no elaboration. See Kelly v. Strouse, 116 Ga. 872 (43 S. E. 280); Rountree v. Seaboard Air-Line Ry. Co., 31 Ga. App. 231, 236 (120 S. E. 654).
Save for the fact that the record indicates that the Beliance Company did in fact pay back to the Weekley Company the cost
“One assisting the servants of another to facilitate his own business, or that of one to whom he sustains a contractual business relation, mutually beneficial, is not a volunteer.” Davis v. Savannah Lumber Co., 11 Ga. App. 610 (2) (75 S. E. 986). In the instant- case, contrary to the theory of the action sought to be maintained by the cases cited in Early v. Houser, 28 Ga. App. 24 (109 S. E. 914), the plaintiff did not maintain his action on the theory that he was the servant of the defendants, but solely on the theory that he was on the premises of his master, following the instructions of his master, in the course of his regular employment in the business of his master, and that the injury was received while so engaged in an effort to facilitate the business .of one to whom he sustained a contractual business relation. See, in this connection, Savannah &c. Ry. Co. v. Booth, 98 Ga. 20 (25 S. E. 928); Georgia Ry. & Power Co. v. Middlebrooks, 34 Ga. App. 156 (128 S. E. 777); Railroad v. Ward, 98 Tenn. 123 (38 S. W. 727, 60 Am. St. E. 848). See also Georgia Ry. & Power Co. v. Simms, 33 Ga. App. 535 (126 S. E. 850).
All agents are liable for their own tortious acts of misfeasance, but they are not liable for such acts of underservants employed by them- for and on behalf of their principal. Civil Code (1910), § 3613. As regards the liability of the Weekley Company, the provisions of the code section just cited with reference to the tortious acts of an underservant do not absolve it, since the agent is relieved of liability for such acts of the under-servant only when the underservant is employed by the agent in its capacity as such, fox and on behalf of its principal, and the principle of law by which the agent is thus relieved does not have application where it appears that the agent is an independent contractor, proceeding, even without the knowledge of the principal, to execute the work with its own servants and according to its own methods.
In view of the principles of law above set forth, the court erred in dismissing the action as against the Weekley Elevator Company.
Judgment affirmed in pari and reversed in part.
Rehearing
As we understand the contention of the movant in its motion for rehearing, exception is taken to the application of the doctrine quoted in the third division of the opinion, to wit, “One assisting the servants of another to facilitate his own business, or that of one to whom he sustains a contractual business relation, mutually beneficial, is not a volunteer,” where, as here, it is assumed that the work for Miller, the plaintiffs master, was being done by the Weekley Elevator Company as an independent contractor. The motion states that “the court decided that the Weekley Elevator Company was an independent contractor in doing the work of repairs upon the elevator for the A. C. Miller Company, which owned the elevator, The court overlooked the fact that this work of repair was not the work cof the A. C. Miller Company, but was simply work !for’ the A. C. Miller Company.” The motion further contends that the decision of the court is self-contradictory, in that it was decided “that the Weekley Elevator Company was an independent contractor, and in the teeth of this decides that the work being done was the work of the A. C. Miller Company. It decided that the Weekley Elevator Company was an independent contractor, and also decides that its mechanic could bind it by an unauthorized permission to Hughes to expose himself in the dangerous premises which were under the control of the Weekley Elevator Company for the purpose of being repaired; and this last decision is made in the very teeth of the undisputed evidence introduced by the plaintiff that no authority of any kind was ever given by the Weekley Company to Hughes, authorizing him to expose himself to this danger.” As we construe the motion, it is thus urged that the doctrine above quoted from the Davis case could only have application when the work in which the injury to the servant was received was that of his master, and not merely for his master. As we see it, the argument would be just as effective if the Reliance Company were completely removed from the case, and the work was being done directly by the Weekley Company for the Miller Company. In point of fact, no stress or point seems to be made upon the fact that the Weekley Company was an independent contractor engaged in the work for the Miller Company under a contract with the Reliance Company and not under a contract with the Miller Com
Rehearing denied.