16 Ga. App. 673 | Ga. Ct. App. | 1915
Lead Opinion
The plaintiff alleged in Ms petition that in March, 1911, he accompanied Ms daughter-in-law to the town of Villa
The petition as originally drawn did not attempt to make the plaintiff an employee or servant of the defendant company. The rule is well settled in Georgia that a mere volunteer has no right of action for injuries resulting to him in doing acts which he voluntarily undertakes without sufficient legal reason or excuse. In Central Railway Co. v. Mullins, 7 Ga. App. 381 (66 S. E. 1028), this court said: “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 a mere volunteer, and the master does not owe him any duty, except that which he owes to a trespasser, — that is, not to injure him wilfully or wantonly after his peril is discovered.” See also Rhodes v. Georgia Railroad Co., 84 Ga. 320 (10 S. E. 20, 20 Am. St. R. 362); Atlanta & West Point R. Co. v. West, 121 Ga. 641 (49 S. E. 711, 67 L. R. A. 701, 104 Am. St. R. 179); Jenkins v. Central Ry. Co., 124 Ga. 986-989 (53 S. E. 379). The amendment reciting that “the agent in charge of the defendant company’s agency” requested the plaintiff to assist the porter in checking and loading the baggage of his daughter-in-law, “agreeing to pay him therefor,” was insufficient to convert the plaintiff from a mere volunteer to an employee of the defendant company. In fact the amendment does not even allege that the agent who agreed to pay the plaintiff to assist in loading this particular trunk intended to employ the plaintiff in behalf of the company, or that the defendant so understood it, but the allegation is that the agent requested the petitioner to assist, etc., and agreed to pay the plaintiff therefor; and, construed by the usual and ordinary rules, this would amount to an allegation that the agent himself was to pay for the services rendered and not the defendant company. In addition to all this, it
The other amendment attempts to hold the defendant liable on the idea that the conduct of the porter in dropping one end of a heavy trunk without giving due notice to the plaintiff of his intention, when he knew that the plaintiff was in a perilous position from which it would be impossible to extricate himself after the porter dropped his end of the trunk, amounted to a wilful and wanton act of negligence on the part of the company. As to this, we think it sufficient to say that the facts alleged do not in our opinion show such a wilful and wanton act on the part of the defendant or its porter as would authorize any recovery therefor. Under the allegations made, there was negligence on the part of the porter, but, construing the petition most strongly against the pleader, we can not say that the negligence as alleged amounted to wilful and wanton negligence. Apparently it amounted to no more than simple carelessness in the performance of an act which the porter could not reasonably assume involved any serious elements of danger. Neither does it clearly appear from the petition, by reason of any facts therein stated, that the porter reasonably knew that his alleged carelessness would probably dr even possibly result in injury to the plaintiff, or that the plaintiff, in sustaining one end of a trunk weighing 175 pounds, in an open unconfined space, was in a perilous position, or would be placed in a perilous position by the dropping of the other end of the trunk, of that weight, a distance not alleged, of perhaps only one or two feet, to the ground.
It is insisted that even if it be conceded that the plaintiff was a mere volunteer, or even a trespasser, the company might nevertheless be held liable because of the injuries resulting to him, as the company was “bound to anticipate his presence and to take such measures as ordinary care and diligence would suggest to avoid injury to him.” This view also does not demand discussion. As
Concurrence Opinion
concurring dubitante. It is clear that the plaintiff would not be entitled to recover, unless the jury would be authorized to find that his injury was the result of wantonness and wilfulness on the part of the defendant’s agent. Though somewhat inclined to hold that under the facts stated the trial judge did not err in submitting to a jury the question whether the dropping of the trunk, at the time and under the circumstances, evidenced such a reckless and utter disregard of the plaintiff’s safety as to constitute wantonness, still, in view of the fact that the petition does not contain any distinct allegation that the negligence of the defendant’s servant was either wanton or wilful, and because perhaps it may be judicially inferred that wantonness could not arise in the dropping of a trunk which weighed only 175 pounds, I concur in the reversal of the judgment.