International Agricultural Corp. v. Suber

24 Ga. App. 445 | Ga. Ct. App. | 1919

Smith, J.

(After stating the foregoing facts.) The contention of plaintiff in error that the evidence adduced on the trial was insufficient to show that Parker, its superintendent and manager, was in fact its vice-principal or alter ego is without substantial merit. It will be recalled that Parker himself testified that he had been for seven years and was at the time of the trial the superintendent and general manager of the defendant’s plant at Americus, Georgia, and that he, in behalf of the corporation, entered into a contract with the independent contractor to paint the building. The testimony of Gammage, the contractor, likewise shows that Parker had general supervision of the plant where the injury occurred, and in behalf of the corporation arranged for the painting of the building by the contractor. In this connection the record further shows that the plaintiff in his petition alleged that the defendant corporation, through its agent and superintendent, E. L. Parker, entered into a contract with C. E. Gammage, and the defendant in its answer says that “it owned and operated the acid or mixing plant referred to in the petition, and admits that it employed C. E. Gammage as an independent contractor to do some painting work on the said plant.”

While it is true of course that the words “superintendent,” “foreman,” “overseer,” and the like, do not necessarily import that the employee bearing such title was the vice-principal of the master (Moore v. Dublin Cotton Mills, 127 Ga. 609, 56 S. E. 839, 10 L. R. A. (N. S.) 772), we do not hesitate to hold that the facts in the instant case were not only amply sufficient to show but demanded the conclusion that Parker was the vice-principal of the defendant corporation.

Plaintiff in error further contends that even if Parker was a vice-principal, the interference relied upon was not such as to create the relation of master and servant. This contention is without merit, since the facts in the case show that the defendant’s vice-principal not only interfered with the manner in which the independent contractor and his employees were painting the building,-—prohibiting them from hanging the hooks on the roof of the building,-—but went further and directed where and how the hooks should be hung, furnishing them with a rope with which to hang the scaffold as directed by him; all of which was contrary to the usual manner which the contractor generally employed in doing such work, for, in the words of the only witness for the defendant, “the stage before [the contractor having previously painted the defendant’s building] was hung from the top of the building, from the roof. The hooks were hung from the top of the building. I did not make an objection then, hanging of it from the roof.” Also the witness Gammage testified that Parker not only interfered and restrained him from hanging the stage as he had started and desired to do, but directed how and where he should hang the hooks which supported the stage or scaffold. The vice-principal having interfered and assumed control to such an extent as to create the relation of master and servant, it was his duty to furnish the employees with a reasonably safe and sound rope. According to the evidence, he got the rope from a corner of the building where they had been mixing acid, and neither the independent contractor nor his employees knew anything of the effect of acid fumes on a grass rope, and they had no opportunity to examine the rope furnished them other than to casually observe it while hanging the scaffold. However, the vice-principal knew or should have known, after his seven years as manager of the acid plant, of the effects of acid fumes on a grass rope, and should have warned the employees of the latent defects thereof. Civil Code (1910), § 3130. See also Huey v. Atlanta, 8 Ga. App. 597 (3), 604 (70 S. E. 71).

Moreover,' had the evidence been insufficient to show that the interference by the vice-principal was such as to create the relation of master and servant, the defendant in the case would nevertheless have been liable under the provisions of the Civil Code, § 4415, subsection 5.- This subsection provides that “the employer is liable for the negligence of the contractor if the employer retains the right to direct or control the time and manner of executing the work; or interferes and assumes control, so as to create the relation of master and servant, or so that an injury results which is traceable to his interferenceObviously, therefore, the interference and assumption of control need not necessarily create the relation of master and servant, but it is sufficient to make the employer liable if it is such “that an injury results which is traceable to his interference,”—the conjunction “or” being-used in the code-section in a disjunctive rather than a conjunctive sense. See, in this connection, the case of Johnson v. W. & A. R. Co., 4 Ga. App. 135 (60 S. E. 1025), where it is held: “For an owner to interfere and assume control, so that an injury results which is traceable to his interference, renders him liable, in this State, although, but for his interference, he might have been free from liability.” The evidence in the case at bar clearly established that the injury for which damages are sought was traceable to the interference of the defendant’s vice-principal, since he furnished the contractor with the defective rope which broke and precipitated the plaintiff’s son to the ground.

We have only dealt with the main contentions of the plaintiff in error as they raise the vital questions in the case. However, after a careful examination and consideration of the record before us, we are satisfied that section 4415, subsection 5, supra, is entirely applicable to the particular facts of this case, and that the numerous exceptions to the 'charge of the court are without substantial merit, since the charge, when considered as a whole, was free from reversible error. Therefore the judgment of the lower court in overruling the motion for a new trial is

Affirmed.

Jenkins, P. J., and Stephens, J., concur.