118 Ga. 292 | Ga. | 1903
The plaintiff in error, C. M. Shepherd, brought against the Southern Pine Company an action for damages on account of persona] injuries alleged to have been sustained by him by reason of the negligence of certain employees of tháú company and without fault on his part. The defendant demurred to the plaintiff’s petition, on the general ground that it did not set forth “ such a state of facts as would warrant or authorize a recovery in ” his favor ; and upon the special ground that, taking as true the allegations upon which he based his alleged right to recover damages, they showed that if he sustained any injury at all, it was caused by “the act of a fellow-servant,” for which the defendant could not be held responsible. Thereupon the plaintiff offered an amendment to his petition, whereby he sought to meet this special ground ■of demurrer by alleging, in substance, that his injury was directly ■attributable to the negligent conduct of a particular employee of the company, who was its superintendent and vice-principal, who had complete control over the management of its business and full ■authority to give orders to its employees as well as to suspend and discharge them, who “ did not labor with petitioner and the other laborers,” and who, therefore, was in no sense his fellow-servant. Counsel for the defendant objected to the allowance of this amendment, on the ground that it was not germane to the case made by the plaintiff’s petition, and that he sought by means of this amendment to set up a new cause of action. The trial judge refused to ■allow the plaintiff to thus amend, and, after hearing argument upon the defendant’s demurrer, sustained the same both upon the general and the special grounds thereof. To the action of the trial court in giving this disposition to the case the plaintiff duly excepted.
It is to be noted that the plaintiff sought to recover, not only because of the alleged negligence on the part of the company’s superintendents, but also because of like negligence on the part of its other employees; and that he stresses the fact that, in attempting to move the lumber at the time and in the manner alleged, both the superintendents and the other servants were engaged “ in the usual course of their duties as employees of said defendant company.” That is to say, all of its employees, including the plaintiff and its superintendents, were, at the time of his injury, in the discharge of their regular duties in undertaking by manual labor to perform a given object, i. e., that of moving from “ skids at the mill . . certain lumber to the ground, across a railroad track.” This case is not, therefore, distinguishable on its facts from that of Gunn v. Willingham, 111 Ga. 427, wherein it was held that “ One who is engaged with others in raising, by means of a derrick, timbers which are being used in the construction of a house, and whose particular duties are to stand on a scaffold and receive and detach such timbers from the derrick when they are sufficiently elevated for the use intended, is a fellow-servant of one who stands on the ground and operates the machinery which elevates such timbers, when the persons so engaged are under one common employment, receiving orders from another as superintendent of the entire construction; and this is so even if the person operating the derrick is invested with authority to direct how and when the elevation of timbers shall be made.” The purpose of the amendment offered by the plaintiff was not merely to amplify or perfect the allegations set forth in his petition, but to entirely change the statement of facts therein recited. Indeed he proposed, by way of this amendment, practically to traverse the truth of such statement and to substitute in lieu thereof another to the effect that Burdett “ was the superintendent of the whole plant,” acted solely as a vice-principal of the company, and did not himself engage with its other servants in moving lumber