Johnson v. Western & Atlantic Railroad
4 Ga. App. 131
Ga. Ct. App.
1908
Check Treatment
Russell, J.

1. The court did not err in dismissing the petition as to defendants alleged to be tenants of the building under repair. Pleadings must always be construed most strongly against the pleader. Applying this rule, we think that the court properly sustained the general demurrers as to the Atlantic Coast Dine Bail-road Company, the Louisville & Nashville Bailroad Company, and' the Seaboard Air-Line Bailway. It could not only be inferred from the petition that these defendants were tenants in the building *134which was being repaired, but it is in fact expressly stated that the depot was in the possession and control of the Western & Atlantic Bailroad- Company, which, it is alleged, was bound by the terms of its lease to keep it in repair. As tenants ordinarily are not responsible for repairs, and as, under the rule of - construction to which we have above referred, it must be assumed that the plaintiff’s son was employed by an independent contractor, who was to repair the roof of the old depot for the Western & Atlantic Bailroad Company, there could be no liability, in any view of the casé, on the part of any of the defendants, except the Western & Atlantic Bailroad Company.

2. Assuming that the deceased was the servant of an independ-. ent contractor, — as we must, upon review of the allegations of the petition, — there would be no liability as to this defendant, except for the allegations contained in the 16th and 54th paragraphs of the petition. One who employs an independent contractor to perform a work, is not, generally, liable for injuries resulting to the servants engaged in the work. But these paragraphs (when construed with the petition as a whole, and especially when viewed in connection with the paragraph immediately preceding and the two paragraphs immediately following each of them), in our judgment, cause the petition to set forth a cause- of action sufficient to withstand a general demurrer. The paragraphs to which we refer are as follows: (15) “Defendants instructed petitioner’s son and others engaged in said work to be careful to save as much of the iron as possible. (16) Defendants specially informed them that that part of the iron towards Central Avenue was sound and all right. (17) It was on the part- of the building described in the preceding paragraph that petitioner’s son met his death.” And the 53d, 54th, and 56th paragraphs, which are embraced in a second count, embody practically the same language. The defendant could not admit these allegations and escape liability. If the defendant had turned the building over to an independent contractor to be repaired, why did it interfere with the contractor’s servants? If the defendant, being one who was responsible for the repairs of the depot, and having let a contract for the roofing to an independent contractor, directed one of the contractor’s servants to do certain work for the benefit' of the owner (or, in this case, the lessee for a term of years), and, without being chargeable in any *135way for the safety of such an employee, instructed him that a certain portion of the roof was safe, and thereby caused him to omit the use of that caution which the employee otherwise might have exercised in the dangerous business in which he was engaged, and directly or indirectly caused such employee’s injury or death, he thereby put himself ad hane vieem in the shoes of the independent contractor, who was the master.

3. The case, under the allegations 'of the petition, would fall under the second subdivision of the fifth paragraph of §3819 of' the Civil Code. 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, under the provisions of §3818 of the Civil Code, — by reason of the fact that the servants of the •independent contractor were not subject to his immediate control and direction. See Atlanta R. Co. v. Kimberly, 87 Ga. 168 (13 S. E. 277, 27 Am. St. R. 231); 1 Lawson’s Rights, Rem. & Prac. §299; Savannah R. Co. v. Phillips, 90 Ga. 834 (3), (17 S. E. 82). The petition alleges that “Defendants instructed petitioner’s son,. and others engaged in said work, to be careful to save as much iron as possible.” And there are other allegations in the petition which (considered in connection with this) naturally and properly raise the inference that, but for the interference of the defendants, the casualty which resulted in the death of the plaintiff’s son would not have occurred. If the plaintiff proves her allegations (amplified to meet the special demurrers) the Western & Atlantic Bail-road Company voluntarily assumed the duty, which was upon the independent contractor, of furnishing the deceased servant a safe place to work, and really undertook to safeguard the servant to a greater degree than the law requires his master to do under the circumstances.

4. We think, therefore, the court erred in sustaining the general demurrer and dismissing the petition, in so far as it related to the Western & Atlantic Bailroad Company. The court expressly declined to pass upon the special demurrers. The paragraphs to which we have referred are open to special demurrer. As a corporation can act only through its agent, the defendant would have the right to know which of its agents gave the direction and information contained in the 15th and 16th paragraphs and in the *13653d and 54th paragraphs. And it would have to appear' that the agent or servant of the corporation was one with sufficient .authority to bind the corporation in its behalf, and that the interference was within the scope of the authority of such agent. But in the absence of-such special demurrer, or where, as in this case, such special demurrer has not been sustained, the statement of these specific points must, for the purposes of our consideration, be deemed to be waived; and the statement made by the plaintiff is sufficient for the purpose of a trial.

Judgment affirmed in part, and reversed in part.