35 Ga. App. 672 | Ga. Ct. App. | 1926
The administratrix of the estate of Clyde Otis Mathis, deceased, brought suit under the Federal employer’s liability act against the Western & Atlantic Railroad, to recover for his death, alleged to have been caused by the negligence of the defendant’s agents and servants, the petition averring that at the time decedent was injured he was an employee of the defendant railroad, and that both he and the defendant were engaged in interstate commerce. The trial resulted in a nonsuit, and the case is here upon exceptions by the plaintiff to .review that judgment. Irrespective of other questions, we think the nonsuit was right, because the evidence failed as a matter of law to establish the relation of master and servant. The evidence showed that the decedent, at the 'time of receiving the injury which resulted in his death, was working as a substitute for one Boseman and at Bose-man’s instance, at Kennesaw, a station on the defendant’s line of railroad in Cobb county, Georgia. The defendant’s agent at this station was Ray Baldwin.. Besides the agent, the defendant employed there two or three other men, including Boseman. On the day of the decedent’s death, Boseman, for some reason not disclosed, desired to go to Atlanta, and had arranged with Mathis to take his place at the station. According to the petition, Mathis met his death under the following circumstances: he had left the station for the purpose ff delivering orders to the defendant’s servants in charge of an approaching train, “having in his hand a hoop-like device to which was attached the orders, which hoop-like device was to be handed up and caught upon the arm of the engineman and conductor.” As he neared the track for the purpose of delivering the orders he was attacked “with a spell of epilepsy and staggered and fell upon the track,” and the train ran over his body and killed him. One of the duties of Boseman was to deliver train orders, as Mathis was attempting to do at the time of his death.
On the question whether Mathis was a servant of the railroad, it is enough to examine a portion of the testimony of Boseman, as
The burden was on the plaintiff to prove that the relation of master and servant existed between the decedent and the railroad company on the occasion in question. The plaintiff insists (among other things) that since the evidence shows that the arrangement between Boseman and Mathis was made with the knowledge of Baldwin, the station agent, Mathis became in law a servant of the company, entitled to the same protection as the regular servant for whom he was substituting. This is to treat Baldwin as having the authority to consent to the arrangement on behalf of the company. This he could not have done in the absence of authority to employ labor. There is nothing in the evidence to show that any such authority had been conferred upon him by the railroad company, or that his duties were of such scope that the authority could be implied. If it had appeared that he emplojred Boseman, whom the company had undoubtedly treated as its servant, then it might have been inferred that he was empowered to employ Mathis. But Boseman’s testimony that Baldwin had not stated certain things with reference to “getting authority,” and as to the strength of Baldwin’s recommendations to the company, and that he, the witness, had not made certain extrajudicial statements to the attorney conducting the cross-examination, was entirely consistent with the positive and unequivocal testimony of
The general scope of Baldwin’s duties are not shown, and only a few men were employed at the station. Besides this, we know merely that he was station agent and was an operator.
“The general effect of the decisions concerning employees whose functions relate to a circumscribed sphere of operations which place them for certain purposes in control of a small number of persons may be said to be that no presumption will be entertained of their possession of authority to hire subordinates, and that the questions whether their authority, supposing it to be conceded and established, was sufficiently extensive to enable them to bind their principals by the contract in question, are to be determined from the specific evidence introduced.” 1 Labatt’s Master & Ser.vant (2d ed.), 404. The authority to employ other servants for the company to perform such important duties as were required of Boseman could not be inferred from the mere fact that Baldwin was the agent in charge of the office. Southern Railway Co. v. Duke, 16 Ga. App. 673 (85 S. E. 974). In the case of Payne v. Rivers, 28 Ga. App. 28 (3) (110 S. E. 45), this court held that where a person is employed by a servant as his temporary substitute, with the express or implied knowledge of the master, or with the master’s subsequent ratification, he is to be considered as a servant for the time being, to the same extent as would be the person for whom he is substituting. But in that case it appeared not only that the substitution was made with the knowledge of the station agent, but that he had authority to employ other servants about the station. Hence that case is distinguishable from the case now under consideration. Notice to Baldwin was not notice to the master, except when it related to matters within the scope of his employment. In the absence of evidence, either direct or
The station agent might, perhaps, have had the implied authority to employ additional help in an emergency rendering it necessary to do so to protect the company’s interests. Hollidge v. Duncan, 199 Mass. 121 (85 N. E. 186, 17 L. R. A. (N. S.) 982); B. & O. Railroad Co. v. Burtch, 263 U. S. 540 (44 Sup. Ct. 165, 68 L. ed. 433). But no emergency appears in the present case. So far as the evidence discloses, Boseman was not sick or forced by any circumstance to leave his post of duty. The so-called “emergency authority” should be limited to situations of actual emergency, so as not to infringe the master’s right to select such servants as he needs or chooses to employ. This right is an important one, involving, as it does, considerations relating to the character of the service required, the liability of the master for the servant’s negligence, and certain liabilities to the servant himself. In the instant case the person substituted was unfortunately afflicted with a serious malady. The company might have desired to inquire into the condition of the health of a person whom it was
“To create the relation of master and servant there must be some contract or some act on the part of one person which expressly or impliedly recognizes another as his servant.” Atlanta & West Point R. Co. v. West, 121 Ga. 641 (49 S. E. 711, 67 L. R. A. 701, 104 Am. St. R. 179). “One who without any employment whatever, but at the request of a servant who has no authority to employ other servants, voluntarily undertakes to perform service for a master is” not a servant but “a mere volunteer.” Early v. Houser, 28 Ga. App. 24 (2) (109 S. E. 914). See also, in this connection, Cooper v. Lowery, 4 Ga. App. 120 (60 S. E. 1015); Central of Ga. Ry. Co. v. Mullins, 7 Ga. App. 381 (66 S. E. 1028); So. R. Co. v. Duke, 16 Ga. App. 673 (85 S. E. 974); Rhodes v. Ga. R. Co., 84 Ga. 320 (10 S. E. 922, 20 Am. St. R. 362). The case involves no question of ratification. Baldwin could not ratify that which he could not in the first place authorize. And it does not appear that Mathis ever did any service that was accepted by any one having authority from the company to ratify the arrangement under which he worked.
Irrespective of any question of estoppel (see Gulf Refining Co. v. Harris, 30 Ga. App. 240, 117 S. E. 274), the evidence in the record, in the absence of rebuttal, -might perhaps be sufficient to authorize a finding of the master and servant relation between the defendant and Mathis, if the matter was in issue between the defendant and a third person, whose knowledge of the facts necessary to establish the relation would presumably be inferior to that of either of the parties to the contract creating it, if it existed. But in the present case the plaintiff administratrix is in no better position as to the shifting of the burden of evidence than her intestate would be had he merely been injured and were himself suing. The action being predicated upon the theory that the decedent was the defendant’s servant, the plaintiff could not recover without showing the existence of the actual relation alleged, the plaintiff having the onus as to this issue. Postell v. Brunswick &c. R. Co., 112 Ga. 602 (37 S. E. 869).
Moreover, to hold that the evidence would authorize a finding
It would be an extreme hardship to hold the company liable as the master of a person employed by one acting with no other authority than that conferred by the company’s station agent, who, even if himself authorized, was yet not empowered to delegate his authority to another.
The evidence failed to show that the decedent was the defendant’s employee. The nonsuit was right, under the evidence, and the judgment should be affirmed.
Judgment, affirmed.