31 Ga. App. 231 | Ga. Ct. App. | 1923
(After stating the foregoing facts.) It may or may not be that the petition alleges a cause of action (see, on this question, Decatur Lumber Co. v. Fulton, 26 Ga. App. 499 (4), 106 S. E. 609; Lawrenceville Oil Mill v. Walton, 143 Ga. 259 (1),
In the case of Kelly v. Strouse, 116 Ga. 872 (4 b) (43 S. E. 280), it is said that on a motion for a nonsuit “the only question is whether the evidence is sufficient in law to maintain the issue in fact made by the pleadings;” “if the evidence supports the issue made by the pleadings, it is proper to overrule a demurrer to the evidence, or a motion for a nonsuit in the nature of such demurrer,
Mr. Justice Lumpkin, in Florida Coca-Cola Bottling Co. v. Ricker, 136 Ga. 411, 420 (71 S. E. 734), speaking for himself, expressed dissatisfaction with the rule of practice above referred to (see also Civil Code of 1910, § 5573), but we have found no decision of the Supreme Court which would warrant this court in declining to observe it in a case like the present, although it seems that this rule is subject to an exception in cases of ejectment (and why not also in trover?) where the property is so indefinitely described that no lawful verdict could be rendered. Williams v. Perry, 136 Ga. 453 (2 a) (71 S. E. 886). To us it seems that in no ease where the petition fails to set forth a cause of action should a nonsuit be reversed because the case was proved as laid, but that the judgment, though incorrect in point of practice, should be affirmed on the idea that the error was harmless. We have not found, however, that the Supreme Court in any case has adopted such a course.
We do not mean by the foregoing to intimate that the plaintiff has not alleged or proved a cause of action. We have intended merely to impress the fact that whether he has or not done either is a question not presented for decision under the record, and that we should determine only whether the allegata corresponds with the probata, provided the plaintiff has not disproved “his right to recover by establishing the existence of other undisputed facts which show that he is not entitled to a verdict.” It would seem, therefore, in view of the above, that any discussion of the correlative duties between master and servant would be out of place, unless pertinent under the proviso just quoted.
We have compared the allegations and the evidence, and in our opinion the plaintiff has established his case as laid, without disproving any undisputed defensive facts which would disentitle him
“Whether the plaintiff had the same opportunity as the defendant, of knowing of the defects alleged and proved, would depend upon the character of such defects,—whether they were latent or patent. Where the defect is superficially discernible or plainly apparent to the eye, the servant has the same opportunity of seeing it and knowing of it as the master. But if the defect is latent, the master would be held bound to discover the fact sooner than the servant, because the duty of inspection rests on the master, and not on the servant. In a case of latent defects,—those which are only discoverable by proper inspection,—the master is necessarily held to a higher standard of conduct than the servant, since the master owes to the servant the duty of inspection. Hubbard v. Macon Ry. & Light Co., 5 Ga. App. 223 (62 S. E. 1018); Cedartown Cotton Co. v. Miles, 2 Ga. App. 83 (58 S. E. 289).” Cochrell v. Langley Mfg. Co., 5 Ga. App. 317 (3), 324 (63 S. E. 244).
The fact that the plaintiff discovered the defects “by a positive and careful examination” subsequently to his injury does not show that he had equal means with the defendant of knowing of the defect, for the'reason that a.failure to make such inspection prior to his injury was not a violation of any duty enjoined upon him, the defect appearing by the evidence to have been latent. See
This ease is unlike that of Bolden v. Central of Georgia Railway Co., 130 Ga. 456 (60 S. E. 1047), in which the defects were obvious and discernible by superficial observation. In Morris v. Charleston & Western Carolina Railway Co., 22 Ga. App. 186 (95 S. E. 748), no general propositions of law were laid down, but the decision was confined to the particular facts of that case. Whether the ruling there made is sound or unsound, the court was ruling upon the sufficiency of a pleading, while here the only question is whether the plaintiff proved his case as laid. The present ruling does not impinge upon either of these cases.
Judgment reversed.