Bolton v. Ga. Pac. R. Co

Decision Date11 November 1889
Citation83 Ga. 659,10 S.E. 352
PartiesBolton v. Georgia Pac. R. Co.
CourtGeorgia Supreme Court

Master and Servant—Pleading—Amendment-Evidence—Nonsuit.

1. A plaintiff who declares on the common-law right of a servant to recover for injuries received by reason of defective materials knowingly furnished by his master, will not be allowed to amend so as to recover under a statute, since that would introduce a new cause of action, even where all the facts required to be set out by the statute are already set out in his common-law declaration, they being mere surplusage therein.

2. Where plaintiff was injured by using a ladder made by a workman under him, whom he knewto be inefficient, evidence of promises made by a person representing defendant that such workman should be discharged as soon as possible, by which promises plaintiff alleges he was induced to remain in defendant's service, is irrelevant.

3. It appeared that a good ladder had been provided by defendant, but that a workman, without instructions from any one, took defective lumber and made a ladder for the purpose of ascending to and descending from the roof of a house, and advised plaintiff to use this instead of the one furnished by defendant, which he did, and was injured. Held, that a nonsuit was properly granted.

Error from superior court, Fulton county; M. J. Clarke, Judge.

L. W. Thomas and J. A. Hunt, for plaintiff in error. Jackson & Jackson, for defendant in error.

Simmons, J. 1. Bolton brought his action against the railroad company for injuries received by him in Alabama, on account, as he alleged, of the negligence of the company, through its agents and servants. His declaration was founded upon the common-law right which renders the employer liable for knowingly furnishing defective materials to its servants, whereby they are injured. At the trial, he offered to amend his declaration by declaring on the statute of Alabama, which gives employes a statutory right to recover upon other grounds. This amendment was objected to by the defendant, and the objection was sustained; and this is one of the errors assigned in the bill of exceptions. We do not think the court erred in refusing to allow this amendment. Whenever a suit is commenced in this state, and the plaintiff relies for his right of action and his recovery upon a foreign statute, he must plead said statute. If he pleads it defectively, or shows in some way that he relies upon it, he will be entitled, under our Code, to amend by setting out the statute, or such parts of it as he relies on, as was done in the case of Railroad Co. v. Nix, 68 Ga. 572. If, however, he commences his action, and relies upon his common-law right, we do not think he can amend his common-law declaration by setting out the statute, and relying upon that for his right to sue and for his recovery. In this case the original declaration was founded upon the common-law right. Nothing was even intimated therein to the effect that he relied upon the statute. According to the decision in Cotton Mills v. Railroad Co., and cases cited therein, made at this term, (10 S. E. Rep. 113,) this amendment would have added a new and distinct cause of...

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