Peabody Manufacturing Co. v. Smith

Court of Appeals of Georgia

Peabody Manufacturing Co. v. Smith

94 S.E.2d 156, 94 Ga. App. 240, 1956 Ga. App. LEXIS 516

CourtCourt of Appeals of Georgia

DecidedJune 25, 1956

Docket36136, 36137

StatusPublished

Cited by7 cases

This text of 94 S.E.2d 156 (Peabody Manufacturing Co. v. Smith) 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.

Bluebook

Peabody Manufacturing Co. v. Smith, 94 S.E.2d 156, 94 Ga. App. 240, 1956 Ga. App. LEXIS 516 (Ga. Ct. App. 1956).

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Opinions

Nichols, J.

1. The Supreme Court in Brown v. Smith & Kelly, 86 Ga. 274, 277 (12 S. E. 411, 22 Am. St. R. 456), recognized the rule that only the master of a servant could be held liable for his negligence. The exceptions to this rule are set forth in Code § 105-502 where it is provided that in certain cases the employer of a contractor may be held liable for the negligence of the contractor, or his employees. In the present case the employer, or landowner, is attempting to hold both the contractor and the subcontractor liable for the negligence of an employee of one of them. The contract between the landowner and the contractor provided for subcontracts in certain cases. It then set forth the procedure for securing subcontractors. The contractor was to secure bids from subcontractors approved by the architect and deliver such bids to him, or the architect could procure such bids himself, and in either case the architect, with the advice of the contractor, would determine the best bid subject to the approval of the owner as to award and amount of the accepted bid. Therefore, the contractor had no initial or final control over the selection of subcontractors. Actually both the contractor and the subcontractor occupied the relationship of contractors to the landowner. Accordingly, only the employer of the welder could be held liable for negligence even though the contract between the landowner and the con[243]*243tractor stated that the contractor would have full directing authority over the execution of the contract.

Although the petition charges the defendants with negligence, the negligence complained of is the negligence of the employee and his employer, therefore the question for decision is which of the defendants was the master of the welder. Under the decision of the Supreme Court in Brown v. Smith & Kelly, 86 Ga. 274, (which is apparently the leading case in Georgia on this question), the test is which employer had the right to control the employee and to discharge him and employ others to do his work. Although an exhibit attached to' the plaintiff’s petition, (the contract between the plaintiff and the contractor), states that the contractor had full directing authority over the execution of the subcontracts, this same exhibit, as shown above, reserved in the plaintiff the sole authority to approve the selection of subcontractors, and the contractor could not even receive a bid from a subcontractor unless such subcontractor had previously been approved by the architect. Under such circumstances it cannot be said that the contractor had authority to remove the welder and employ another in his place, and the welder must be construed as having been an employee of the subcontractor. It follows therefore that the architect being the agent of the owner and not the contractor, the subcontractor was not directly employed by the contractor. Accordingly, Article VIII of the contract providing that “any costs due to the negligence of the contractor or anyone directly employed by him, either for the making good of defective work . . . making good of damage to property . . . shall be borne by the contractor” fails to render the contractor liable for the negligence of the employee of the subcontractor.

The trial court did not err in sustaining the motion to dismiss made by the contractor, and in overruling the general demurrer filed by the subcontractor. See also, Atlanta & Florida R. Co. v. Kimberly, 87 Ga. 161 (13 S. E. 277, 27 Am. St. R. 231); Georgia Ry. & Power Co. v. Middlebrooks, 34 Ga. App. 156 (128 S. E. 777); Bibb Manufacturing Co. v. Souther, 52 Ga. App. 722 (184 S. E. 421); and Southern Bell Telephone &c. v. Dekle, 83 Ga. App. 261 (63 S. E. 2d 275), affirmed by the Supreme Court, 208 Ga. 254 (66 S. E. 2d 218).

[244]*2442. The allegation of negligence specially demurred to by the defendant Mullins is supported by pleaded facts and can not be construed as being a conclusion of the pleader. Therefore the trial court did not err in overruling this ground of special demurrer.

Judgments affirmed in both cases.

Felton, C. J., Gardner, P. J., Townsend, Carlisle, and Quillian, JJ.,' concur in Case No. 36187. Gardner, P. J., Townsend and Quillian, JJ., concur, and Felton, C. J., and Carlisle, J., dissent in case No. 36186.

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Nichols, J.

1. The Supreme Court in Brown v. Smith & Kelly, 86 Ga. 274, 277 (12 S. E. 411, 22 Am. St. R. 456), recognized the rule that only the master of a servant could be held liable for his negligence. The exceptions to this rule are set forth in Code § 105-502 where it is provided that in certain cases the employer of a contractor may be held liable for the negligence of the contractor, or his employees. In the present case the employer, or landowner, is attempting to hold both the contractor and the subcontractor liable for the negligence of an employee of one of them. The contract between the landowner and the contractor provided for subcontracts in certain cases. It then set forth the procedure for securing subcontractors. The contractor was to secure bids from subcontractors approved by the architect and deliver such bids to him, or the architect could procure such bids himself, and in either case the architect, with the advice of the contractor, would determine the best bid subject to the approval of the owner as to award and amount of the accepted bid. Therefore, the contractor had no initial or final control over the selection of subcontractors. Actually both the contractor and the subcontractor occupied the relationship of contractors to the landowner. Accordingly, only the employer of the welder could be held liable for negligence even though the contract between the landowner and the con[243]*243tractor stated that the contractor would have full directing authority over the execution of the contract.

Although the petition charges the defendants with negligence, the negligence complained of is the negligence of the employee and his employer, therefore the question for decision is which of the defendants was the master of the welder. Under the decision of the Supreme Court in Brown v. Smith & Kelly, 86 Ga. 274, (which is apparently the leading case in Georgia on this question), the test is which employer had the right to control the employee and to discharge him and employ others to do his work. Although an exhibit attached to' the plaintiff’s petition, (the contract between the plaintiff and the contractor), states that the contractor had full directing authority over the execution of the subcontracts, this same exhibit, as shown above, reserved in the plaintiff the sole authority to approve the selection of subcontractors, and the contractor could not even receive a bid from a subcontractor unless such subcontractor had previously been approved by the architect. Under such circumstances it cannot be said that the contractor had authority to remove the welder and employ another in his place, and the welder must be construed as having been an employee of the subcontractor. It follows therefore that the architect being the agent of the owner and not the contractor, the subcontractor was not directly employed by the contractor. Accordingly, Article VIII of the contract providing that “any costs due to the negligence of the contractor or anyone directly employed by him, either for the making good of defective work . . . making good of damage to property . . . shall be borne by the contractor” fails to render the contractor liable for the negligence of the employee of the subcontractor.

The trial court did not err in sustaining the motion to dismiss made by the contractor, and in overruling the general demurrer filed by the subcontractor. See also, Atlanta & Florida R. Co. v. Kimberly, 87 Ga. 161 (13 S. E. 277, 27 Am. St. R. 231); Georgia Ry. & Power Co. v. Middlebrooks, 34 Ga. App. 156 (128 S. E. 777); Bibb Manufacturing Co. v. Souther, 52 Ga. App. 722 (184 S. E. 421); and Southern Bell Telephone &c. v. Dekle, 83 Ga. App. 261 (63 S. E. 2d 275), affirmed by the Supreme Court, 208 Ga. 254 (66 S. E. 2d 218).

[244]*2442. The allegation of negligence specially demurred to by the defendant Mullins is supported by pleaded facts and can not be construed as being a conclusion of the pleader. Therefore the trial court did not err in overruling this ground of special demurrer.

Judgments affirmed in both cases.

Felton, C. J., Gardner, P. J., Townsend, Carlisle, and Quillian, JJ.,' concur in Case No. 36187. Gardner, P. J., Townsend and Quillian, JJ., concur, and Felton, C. J., and Carlisle, J., dissent in case No. 36186.

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94 S.E.2d 156, 94 Ga. App. 240, 1956 Ga. App. LEXIS 516, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peabody-manufacturing-co-v-smith-gactapp-1956.

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