48 Ga. App. 335 | Ga. Ct. App. | 1934
1. Although “one into whose service another volunteers without his assent, express or implied, is not under the duties of a master toward a servant or required to anticipate or discover the peril of such volunteer, but is only bound, relatively to such volunteer, to use due care not to injure him after notice
2. The petition seeks the recovery by the minor of damages for pain and suffering and for loss in earning power after the time of his majority, and is not a claim by the father for loss of services. Hence, any negligence by the father “was not imputable to his son, and therefore could not be pleaded as a defense in [this] action by the son to recover for personal injuries he had sustained although in an action for the father’s damages, any negligence of the father causing or contributing to the injury would be matter of defense. Hooper v. So. Ry. Co., 112 Ga. 96, 99 (37 S. E. 165). It is alleged that “the danger of the collapse of this floor,” which caused the injury, “was especially pointed out by [the father], an employee of the defendants, but the defendants insisted that the structure would hold, and directed that the work go forward.” It is not stated that this warning and knowledge by the father were known to the boy before the injury. The boy therefore would not be bound thereby, although even if he stood in the place of the father, or if the father’s knowledge were imputable to him, the rules in Evans v. Central of Ga. Ry. Co., 36 Ga. App. 58 (2, 3), 60 (135 S. E. 760), might be applicable, that, “where a servant with knowledge of a dangerous situation or instrumentality proceeds
3. “ Under the law the servant or employee is not required to make any special inspection to see the condition of the place furnished to him, but if, by exercising ordinary care, he can discover the condition of it, it is his duty to do so.” Payne v. Rivers, supra, and cit.
4. The first count of the petition, in setting forth the condition of the building and upper floor of the warehouse whose collapse caused the injuries, alleged actual knowledge by the defendants of the condition and their negligence in not supplying the plaintiff a safe place to work, without showing on the face of the petition equal knowledge or any negligence by the plaintiff, and thus was sufficient to raise questions determinable by a jury rather than by the court on demurrer. It was therefore error, as to this count, to sustain the general demurrer.
5. The second count, similar to the first, except that it is based upon the theory that, under the facts alleged, the plaintiff was an invitee on the premises by the express and implied consent of the defendants, instead of a person occupying the status of a servant, was also good against the general demurrer.
6. Since the petition was divided into two separate counts, one based upon the theory of master and servant, and the other of an invitee, there is no duplicity or improper joinder of the alleged causes of action, both growing out of the same facts and injury. This ground of special demurrer was therefore without merit.
7. Both counts allege that a part of the physical injury is permanent, but that the-plaintiff “does not.know just what is the nature -of his permanent injury,, but only knows its- effects upon
Judgment reversed, with direction.