Savannah River Lumber Co. v. Smith

Court of Appeals of Georgia

Savannah River Lumber Co. v. Smith

113 S.E. 46, 28 Ga. App. 767, 1922 Ga. App. LEXIS 845

Court of Appeals of Georgia·Decided July 12, 1922·No. 12955·Published·Cited by 2 cases

Opinion

Bloodworth, J.

1. "In an action in this State by a servant against bis 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.” (Italics ours.) Charleston & Western Carolina Railway Co. v. Miller, 113 Ga. 15 (2) (38 S. E. 338).

2. An allegation in a petition that the plaintiff was free from fault can not serve as a substitute for a proper allegation of his want of knowledge of the defect or that he could not have discovered it by ordinary diligence. Allen v. Augusta Factory, 82 Ga. 76, 79 (8 S. E. 68).

3. Under the above rulings, the petition did not set out a cause of action, and the court erred in overruling the general demurrer.

■Judgment reversed.

Broyles, C. J., and Luke, J., concur.

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Bloodworth, J.

1. "In an action in this State by a servant against bis 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.” (Italics ours.) Charleston & Western Carolina Railway Co. v. Miller, 113 Ga. 15 (2) (38 S. E. 338).

2. An allegation in a petition that the plaintiff was free from fault can not serve as a substitute for a proper allegation of his want of knowledge of the defect or that he could not have discovered it by ordinary diligence. Allen v. Augusta Factory, 82 Ga. 76, 79 (8 S. E. 68).

3. Under the above rulings, the petition did not set out a cause of action, and the court erred in overruling the general demurrer.

■Judgment reversed.

Broyles, C. J., and Luke, J., concur.

Savannah River Lumber Co. v. Smith, 113 S.E. 46, 28 Ga. App. 767, 1922 Ga. App. LEXIS 845 (Ga. Ct. App. 1922).

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