Mathis v. Western &. A. R. R

Decision Date20 July 1928
Docket Number(No. 17050.)
CourtGeorgia Court of Appeals
PartiesMATHIS. v. WESTERN &. A. R. R.

Judgment Adhered to After Rehearing. Oct. 2, 1926.

(Syllabus by the Court.)

Stephens, J., dissenting.

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.

BELL, J. 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:

"I went to work in January, 1923. Mr. Baldwin, the agent, employed me. I made application to Mr. Baldwin for work, by word of mouth. * * * As to whether I recall the day that Clyde Mathis was killed at Kennesaw, I went down that morning to the depot. * * * As to my seeing Clyde Otis Mathis there that morning, he might have been there when I went down there, but anyhow I called him, and he was there, and I told him I would turn things over to him, and I went home to dress to get ready to go to Atlanta. As to my saying anything to Mr. Baldwin about Clyde Mathis that morning, I told him he was going to work for me. He told me it was all right. Mr. Baldwin, he was there before I went home to dress. I left Clyde Otis Mathis in my place. I mentioned to Mr. Baldwin the day before this date about getting off. I did not say about who I was going to put in my place. I asked him who to get, and he said to get anybody who could do the work. Clyde Otis Mathis had worked in my place before, a time or two, a short while—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 killed—hired him and told him I would pay him out of my pay check for this work. I told him I would pay him. Nothing was said about the agent. Whatever he charged I would pay him. And it was on that agreement between me and him that this deceased was working there that day. I stated I got my father to finish out the work that afternoon. I paid him. And if I got my brother or any one to take my place at any other time, or my father, I always paid whoever took my place. I made the arrangements to work in my place, and paid them out of my pay. They were working for me at that time. I went down to the depot that morning I spoke of, and Clyde wasn't there. I swept the depot, as it was my duty to do so, and then, after I had cleaned up and got things straight there, Clyde Mathis, under his agreement with me. came down there to relieve me and to finish my day's work while I went somewhere else, with the agreement between me and him that I would pay him for it. * * * Well, a part of the time I left there, there wasn't anything to be done; he was just there in case anything came up. As to whether or not I got Mr. Baldwin's consent on this occasion for Clyde Mathis to work for me, he said any one I could get to do the work, and I got Clyde. He knew I had Clyde, and he didn't object. As to why did I get his permission, well, I wouldn't be off without asking him. On other occasions, when Clyde Mathis substituted for me as to whether or not I got Mr. Baldwin's consent for him to substitute for me, it was always all right; any one that could do the work for me to put there. I say it was always all right with Mr. Baldwin if I got somebody that could do the work, if I paid them for it. That was all right with Mr. Baldwin. As to whether I mean to state when I got Clyde Mathis at other times to work a little while at the time I went to Mr. Baldwin and saw him about it, it was all right, as I understood it, if I got somebody that could do the work. I always asked him about being off. Sometimes I would ask him who to get in my place and he would say anybody that could do the work. It was always understood I paid for it. Of course the agent wasn't going to pay for it. I do not know whether Mr. Baldwin had any authority to hire and employ on that railroad or not."

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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