Mathis v. Western &. A. R. R
Decision Date | 20 July 1928 |
Docket Number | (No. 17050.) |
Court | Georgia Court of Appeals |
Parties | MATHIS. v. WESTERN &. A. R. R. |
Judgment Adhered to After Rehearing. Oct. 2, 1926.
(Syllabus by the Court.)
Error from Superior Court, Cobb County; D. W. Blair, Judge.
Suit by M. C. Mathis, administratrix of the estate of Clyde Otis Mathis, deceased, against the Western & Atlantic Railroad. Judgment for defendant, and plaintiff brings error. Affirmed.
J. E. Mozley, of Marietta, and Harwell, Fairman & Barrett, of Atlanta, for plaintiff in error.
Tye, Peeples & Tye, of Atlanta, and Morris, Hawkins & Wallace, of Marietta, for defendant in error.
The administratrix of the estate of Clyde Otis Mathis, deceased, brought suit under the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665) against the Western & Atlantic Railroad to recover for his death, alleged to have been caused by the negligence of the defendant's agents and servants, the petition averring that at the time the decedent was injured he was an employee of the defendant railroad, and that both he and the defendant were engaged in interstate commerce. The trial resulted in a nonsuit, and the case is here upon exceptions by the plaintiff to review that judgment. Irrespective of other questions, we think the nonsuit was right, because the evidence failed as a matter of law to establish the relation of master and servant. The evidence showed that the decedent, at the time of receiving the injury which resulted in his death, was working as a substitute for one Boseman and at Boseman's instance, at Ken-nesaw, a station on the defendant's line of railroad in Cobb county, Ga. The defendant's agent at this station was Ray Baldwin. Besides the agent, the defendant employed there two or three other men, including Bose man. On the day of the decedent's death, Boseman, for some reason not disclosed desired to go to Atlanta, and had arranged with Mathis to take his place at the station. According to the petition, Mathis met his death under the following circumstances: He had left the station for the purpose of delivering orders to the defendant's servants in charge of an approaching train, "having in his hand a hoop-like device to which was attached the orders, which hoop-like device was to be handed up and caught upon the arm of the enginemen and conductor." As he neared the track for the purpose of delivering the orders, he was attacked "with a spell of epilepsy, and staggered and fell upon the track, " and the train ran over his body and killed him. One of the duties of Boseman was to deliver train orders, as Mathis was attempting to do at the time of his death.
On the question whether Mathis was a servant of the railroad, it is enough to examine a portion of the testimony of Boseman, as follows:
two or three hours. The same Mr. Baldwin was the depot agent then. Mr. Baldwin knew about him working there when he worked before. * * * As to whether or not I left anybody in my place that day but Clyde Mathis, my father after the accident happened. On that day. that morning when I left there, I left Clyde there. As to when I first made application when I went to work there, I asked the agent if I could get a job there. The agent saw me. He asked would I take the job. I did not go to work the day I had the conversation with Mr. Baldwin. It was three or four days before I went to work. The agent did not tell me that he would have to submit it to the superintendent or general manager, and get authority. He told me he would have to submit it, and he would recommend me. Yes; the other boy wanted a leave of absence of 30 days. He was going to Atlanta to try out a job and see if he liked that; and he said they would not give him leave of absence. And he asked me if I would take the job. As to whether he told me he would recommend me and theywould take his recommendation, no, sir, he didn't say anything like that. I do not remember him telling me anything about getting authority and sending it in to employ me. I didn't tell you in your office this morning that I first went to the agent, Mr. Baldwin, and discussed it with him, and he told me he would have to send it in, and get authority, and whoever he recommended they would employ. I did tell you that since I got the job it had to go through the superintendent and any one he recommended was hardly ever turned down. I was Working at a salary of so much per month, " paid by the railroad company. "Now at any time that I got this deceased, Clyde Mathis, or any one else, to relieve me there, I paid them myself for doing that work. And at any other time that Clyde had worked a little while for me the railroad didn't pay him. I paid him out of my pay check. I hired him and paid him to take my place and do my work. And that's what I did on this particular day that he was killedâ€
There was some testimony by Boseman and others that on the morning of the partic ular substitution Mathis was seen sweeping the station platform, but it is clear that he was doing so under the instant arrangement with Boseman, and any inferences favorable to the plaintiff which might otherwise be drawn from the fact of such labor on the defendant's premises will be controlled by the legitimate deductions from the testimony...
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