Hughes v. Weekley Elevator Co.

Court of Appeals of Georgia

Hughes v. Weekley Elevator Co.

138 S.E. 633, 37 Ga. App. 130, 1927 Ga. App. LEXIS 519

CourtCourt of Appeals of Georgia

DecidedJuly 14, 1927

Docket17769

StatusPublished

Cited by7 cases

This text of 138 S.E. 633 (Hughes v. Weekley Elevator Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hughes v. Weekley Elevator Co., 138 S.E. 633, 37 Ga. App. 130, 1927 Ga. App. LEXIS 519 (Ga. Ct. App. 1927).

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Opinions

Jenkins, P. .J.

(After stating the foregoing facts.)

The principle announced in the first division of the syllabus requires no elaboration. See Kelly v. Strouse, 116 Ga. 872 (43 S. E. 280); Rountree v. Seaboard Air-Line Ry. Co., 31 Ga. App. 231, 236 (120 S. E. 654).

Save for the fact that the record indicates that the Beliance Company did in fact pay back to the Weekley Company the cost [133]*133ancl charges spent by it in the repair work in question, there would seem to be a total lack of proof going to indicate that the Weekley Company was in any wise authorized to act for and on behalf of the Eeliance Company in doing repair work on elevators sold for the Eeliance Company by the Weekley Company, it in fact appearing that the Eeliance Company had merely contracted with Miller, the purchaser, to supply, under stated conditions, new parts for defective parts, and was in no wise bound to keep the elevator in repair or to pay the cost of repairing or of installing new parts; but even on the assumption that the Weekley Company was in fact acting for the Eeliance Company in doing the repair work in question, the pleadings and proof fail to indicate any liability on the part of the Eeliance Company on account of the alleged negligence of the servant of the Weekley Company, for the reason that it further appears that any such work as the Weekley Company may have been recognized as having been obligated or authorized to perform for and on behalf of the Eeliance Company necessarily must have been and actually was executed as an independent contractor, for the reason that under both the allegations and the proof the- Eeliance Company did not have or retain any authority or control over the time, manner, means, or method by which such work was to be performed. Civil Code (1910), § 4414; Malin v. Oily Council of Augusta, 29 Ga. App. 393 (115 S. E. 504). So far as any liability of the Eeliance Company is concerned, even were it to be assumed that the plaintiff might be entitled to recover for damages occasioned by defective machinery when it appears that at the time of the injury the very work upon which he was engaged was that of helping to remedy the defect which caused the machinery to fail to function (Green v. Babcock Lumber Co., 130 Ga. 469, 60 S. E. 1062; Huey v. Atlanta, 8 Ga. App. 597, 604 (70 S. E. 71), there could, nevertheless, be no recovery against the Eeliance Company in the instant case for any such alleged defect in the machinery, since it appears, from the plaintiff’s contention, that while such defect may have occasioned “the first fall of the elevator on that dajr,” the contention of the plaintiff as to the proximate cause of the fall which occasioned the injury is that it was brought about solely by the negligence of the servant of- the Weekley Company in his manipulation of the safety-catch. According to the [134]*134principles above set forth, the court did not err in dismissing the ease in so far as it was proceeding against the Eelianee Company.

“One assisting the servants of another to facilitate his own business, or that of one to whom he sustains a contractual business relation, mutually beneficial, is not a volunteer.” Davis v. Savannah Lumber Co., 11 Ga. App. 610 (2) (75 S. E. 986). In the instant- case, contrary to the theory of the action sought to be maintained by the cases cited in Early v. Houser, 28 Ga. App. 24 (109 S. E. 914), the plaintiff did not maintain his action on the theory that he was the servant of the defendants, but solely on the theory that he was on the premises of his master, following the instructions of his master, in the course of his regular employment in the business of his master, and that the injury was received while so engaged in an effort to facilitate the business .of one to whom he sustained a contractual business relation. See, in this connection, Savannah &c. Ry. Co. v. Booth, 98 Ga. 20 (25 S. E. 928); Georgia Ry. & Power Co. v. Middlebrooks, 34 Ga. App. 156 (128 S. E. 777); Railroad v. Ward, 98 Tenn. 123 (38 S. W. 727, 60 Am. St. E. 848). See also Georgia Ry. & Power Co. v. Simms, 33 Ga. App. 535 (126 S. E. 850).

All agents are liable for their own tortious acts of misfeasance, but they are not liable for such acts of underservants employed by them- for and on behalf of their principal. Civil Code (1910), § 3613. As regards the liability of the Weekley Company, the provisions of the code section just cited with reference to the tortious acts of an underservant do not absolve it, since the agent is relieved of liability for such acts of the under-servant only when the underservant is employed by the agent in its capacity as such, fox and on behalf of its principal, and the principle of law by which the agent is thus relieved does not have application where it appears that the agent is an independent contractor, proceeding, even without the knowledge of the principal, to execute the work with its own servants and according to its own methods.

In view of the principles of law above set forth, the court erred in dismissing the action as against the Weekley Elevator Company.

Judgment affirmed in pari and reversed in part.

Stephens and Bell, JJ., concur.

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Jenkins, P. .J.

(After stating the foregoing facts.)

The principle announced in the first division of the syllabus requires no elaboration. See Kelly v. Strouse, 116 Ga. 872 (43 S. E. 280); Rountree v. Seaboard Air-Line Ry. Co., 31 Ga. App. 231, 236 (120 S. E. 654).

Save for the fact that the record indicates that the Beliance Company did in fact pay back to the Weekley Company the cost [133]*133ancl charges spent by it in the repair work in question, there would seem to be a total lack of proof going to indicate that the Weekley Company was in any wise authorized to act for and on behalf of the Eeliance Company in doing repair work on elevators sold for the Eeliance Company by the Weekley Company, it in fact appearing that the Eeliance Company had merely contracted with Miller, the purchaser, to supply, under stated conditions, new parts for defective parts, and was in no wise bound to keep the elevator in repair or to pay the cost of repairing or of installing new parts; but even on the assumption that the Weekley Company was in fact acting for the Eeliance Company in doing the repair work in question, the pleadings and proof fail to indicate any liability on the part of the Eeliance Company on account of the alleged negligence of the servant of the Weekley Company, for the reason that it further appears that any such work as the Weekley Company may have been recognized as having been obligated or authorized to perform for and on behalf of the Eeliance Company necessarily must have been and actually was executed as an independent contractor, for the reason that under both the allegations and the proof the- Eeliance Company did not have or retain any authority or control over the time, manner, means, or method by which such work was to be performed. Civil Code (1910), § 4414; Malin v. Oily Council of Augusta, 29 Ga. App. 393 (115 S. E. 504). So far as any liability of the Eeliance Company is concerned, even were it to be assumed that the plaintiff might be entitled to recover for damages occasioned by defective machinery when it appears that at the time of the injury the very work upon which he was engaged was that of helping to remedy the defect which caused the machinery to fail to function (Green v. Babcock Lumber Co., 130 Ga. 469, 60 S. E. 1062; Huey v. Atlanta, 8 Ga. App. 597, 604 (70 S. E. 71), there could, nevertheless, be no recovery against the Eeliance Company in the instant case for any such alleged defect in the machinery, since it appears, from the plaintiff’s contention, that while such defect may have occasioned “the first fall of the elevator on that dajr,” the contention of the plaintiff as to the proximate cause of the fall which occasioned the injury is that it was brought about solely by the negligence of the servant of- the Weekley Company in his manipulation of the safety-catch. According to the [134]*134principles above set forth, the court did not err in dismissing the ease in so far as it was proceeding against the Eelianee Company.

“One assisting the servants of another to facilitate his own business, or that of one to whom he sustains a contractual business relation, mutually beneficial, is not a volunteer.” Davis v. Savannah Lumber Co., 11 Ga. App. 610 (2) (75 S. E. 986). In the instant- case, contrary to the theory of the action sought to be maintained by the cases cited in Early v. Houser, 28 Ga. App. 24 (109 S. E. 914), the plaintiff did not maintain his action on the theory that he was the servant of the defendants, but solely on the theory that he was on the premises of his master, following the instructions of his master, in the course of his regular employment in the business of his master, and that the injury was received while so engaged in an effort to facilitate the business .of one to whom he sustained a contractual business relation. See, in this connection, Savannah &c. Ry. Co. v. Booth, 98 Ga. 20 (25 S. E. 928); Georgia Ry. & Power Co. v. Middlebrooks, 34 Ga. App. 156 (128 S. E. 777); Railroad v. Ward, 98 Tenn. 123 (38 S. W. 727, 60 Am. St. E. 848). See also Georgia Ry. & Power Co. v. Simms, 33 Ga. App. 535 (126 S. E. 850).

All agents are liable for their own tortious acts of misfeasance, but they are not liable for such acts of underservants employed by them- for and on behalf of their principal. Civil Code (1910), § 3613. As regards the liability of the Weekley Company, the provisions of the code section just cited with reference to the tortious acts of an underservant do not absolve it, since the agent is relieved of liability for such acts of the under-servant only when the underservant is employed by the agent in its capacity as such, fox and on behalf of its principal, and the principle of law by which the agent is thus relieved does not have application where it appears that the agent is an independent contractor, proceeding, even without the knowledge of the principal, to execute the work with its own servants and according to its own methods.

In view of the principles of law above set forth, the court erred in dismissing the action as against the Weekley Elevator Company.

Judgment affirmed in pari and reversed in part.

Stephens and Bell, JJ., concur.

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138 S.E. 633, 37 Ga. App. 130, 1927 Ga. App. LEXIS 519, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hughes-v-weekley-elevator-co-gactapp-1927.

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