Charleston & Western Carolina Railway Co. v. Miller

38 S.E. 338, 113 Ga. 15, 1901 Ga. LEXIS 143

• Court: Supreme Court of Georgia
• Decided: March 25, 1901
• Status: Published

Opinion

Simmons, C. J.

1. Where an action is brought solely upon a common-law liability, it is error to allow an amendment thereto which seeks a recovery upon a statutory liability. Such an amendment would add a new and distinct cause of action. Exposition Cotton Mills v. Railroad Co., 83 Ga. 441; Bolton v. Railway Co., 83 Ga. 659; Parmelee v. Railway Co., 78 Ga. 239.

2. In an action in this State by a servant against his master for an injury occurring in another State by reason of defective machinery furnished by the master, it will be presumed, unless the contrary be shown, that the common law prevails in such other State. The declaration in such case, brought under the common law, must allege, not only that the servant was ignorant of the defect, but also that he could not have discovered it by ordinary diligence, and that the master knew or ought to have known of it.

3. Under the principles ruled above, tlie demurrer to the plaintiff’s petition should have been sustained, and the subsequent trial was a nullity.

Judgment reversed.

All the Justices concurring.