Fleming v. E. I. Du Pont De Nemours & Co.

81 S.E.2d 529, 89 Ga. App. 837, 1954 Ga. App. LEXIS 593

• Court: Court of Appeals of Georgia
• Decided: March 2, 1954
• Docket: 34782
• Status: Published

Opinions

Nichols, J.

The question in reviewing a judgment of nonsuit is whether or not the plaintiff’s evidence supports the material allegations of his petition, although, if the plaintiff goes further and introduces evidence that disproves his right to recover by establishing the existence of other undisputed defensive facts which show he is not entitled to a verdict, then a nonsuit is properly granted. Rountree v. Seaboard Air-Line Ry. Co., 31 Ga. App. 231 (120 S. E. 654); Clark v. Bandy, 196 Ga. 546 (27 S. E. 2d 17). In this case, the defendant contends that the evidence shows conclusively that the defendant’s agent, Davenport, became the employee of the county, so as to relieve the defendant of liability for Davenport’s alleged negligence in advising the county engineer with respect to the quantities of explosive to be used and the method of detonation.

To show that the general employee or agent of one person has become the employee of another, with the effect of ending the general employer’s responsibility for the acts of his agent, the new relation of the parties must clearly appear. The testimony of Davenport was that he was employed by the defendant, as their principal explosives representative in Georgia, to sell, handle, and demonstrate the use of explosives; that Patton, the county engineer, had asked Davenport to work with him and to advise him as to the loads of explosive to be used “and such as that”; that Davenport acted in an advisory capacity; that the holes were already dug when Davenport arrived; that Davenport told Patton how much Du Pont powder and dynamite to use, and Patton used the amounts designated by Davenport; that 13 charges of 500 pounds of explosive each were fired successively over a period of one-tenth of a second; that Davenport was standing over the holes as the dynamite went down to see that his instructions were carried out; and that he shot the charges himself.

The allegations of the amended petition were to the effect that Davenport was then acting for and on behalf of the defendant, Du Pont Company, as its agent and was acting within the scope of his employment; that Davenport advised and instructed Patton as to the amount of powder and dynamite to put in the holes, and the dynamite was discharged in the manner and quantities designated by Davenport; that Davenport was in charge of the dynamiting and was supervising the use of the Du Pont dynamite and powder, and had complete control and supervision over the amount of dynamite that was discharged on said occasion; that 6,500 pounds of dynamite were discharged in 13 holes about 60 feet deep, with 500 pounds to the hole; and that the entire 6,500 pounds of explosives were discharged within a tenth of a second.

These allegations are supported in nearly every respect by the evidence set out above. It is true that the evidence did not show that Davenport was in charge of the dynamiting, or that he had complete control and supervision over the amount of dynamite which was discharged. Yet the evidence that Davenport instructed the county engineer, who had called him in as an expert for advice, shows that Davenport had reason to foresee that his advice would be followed, as in fact it was. Davenport exercised supervision in fact, if not as a matter of right.

The evidence fails to show conclusively that Davenport was acting as an employee of the county alone. Although the actual performance of the blasting operation was not within the scope of his employment by the defendant, this was not the activity in which the petition charged the defendant with negligence. It is alleged that the defendant caused the dynamite to be discharged and exploded in the manner set forth, and that the defendant caused the dynamite to be exploded in that manner through Davenport’s advice and instructions to the county engineer. According to Davenport’s testimony, his duties as the defendant’s field representative were to sell dynamite, to advise the purchasers when they needed help, and to demonstrate the use of the explosives sold. The evidence shows that this was exactly what he was doing, and the petition complains of his negligence-in the performance of these duties. Davenport was shown to have been acting in the scope of his employment by the defendant and in the prosecution of the defendant's business of selling explosives.

There is no evidence in the record showing that the county either had, or in fact assumed, the right to control Davenport in the performance of his duties, involving the exercise of his own judgment in an advisory capacity. The fact that the county engineer could follow Davenport’s advice or not, as he saw fit, does not indicate that the county had an employer’s right to discharge Davenport.

The opinion in the case of McLamb v. E. I. Du Pont de Nemours & Co., 79 Fed. 2d 966, cited by the defendant, answers a contention there advanced that the plaintiff, a government employee, became the special employee of the defendant’s dynamiting consultants. But in that case it was conceded that there was no evidence of negligence on the part of the defendant’s agents, and it was held that the plaintiff failed to show that he had become an employee of the defendant; rather, he remained the employee of his general employer, the United States. So, in the present case, it appears that Davenport was still the agent or employee of Du Pont Company when he advised and instructed the county engineer as to the amounts of explosives to be used and the manner of detonation. It is a fair inference that Du Pont Company gave to its customers the advisory services of its sales agent as a part of the sale of its products, so as to promote further sales. If the defendant by its agent gives-instructions for the use of its explosive products, it is liable for its negligence in giving such instructions, in connection with the sale of its products. See Flint Explosive Co. v. Edwards, 84 Ga. App. 376, 393 (66 S. E. 2d 368); Atlantic Co. v. Taylor, 80 Ga. App. 25 (54 S. E. 2d 910).

There was evidence from which the jury could have found that the defendant, through its agent, Davenport, was negligent in instructing the county to use a large quantity of explosives, to be detonated over a very short period of time, as a result of which a blast was performed in the county’s quarry according to the instructions, causing the damage to the plaintiff’s house as alleged. The court erred in refusing to vacate its judgment of nonsuit and reinstate the plaintiff’s case.

Judgment reversed.

Felton, C. J., Gardner, P. J., Townsend and Carlisle, JJ., concur. Quillian, J., dissents.