Brown v. Smith

• Decision Date: 01 December 1890
• Citation: 86 Ga. 274,12 S.E. 411
• Parties: Brown. v. Smith et al.
• Court: Georgia Supreme Court

86 Ga. 274

12 S.E. 411

Brown.

v.Smith et al.

Supreme Court of Georgia.

Dec. 1, 1890.

Master and Servant—When Relation Exists.

The owner of a cargo of coal hired plaintiff to assist in unloading it, and also hired of defendants a pair of mules and a driver to be used in raising the coal from the hold of the vessel. Said owner was to have full control of the mules and the driver, and might put the driver at any other work. And, although he paid defendants for the hire of the mules and driver, he had the right under his contract of hiring to discharge the driver, and appoint a substitute. Held, in an action for personal injuries occasioned by the driver's careless management of the mules, that in said work the driver was not the servant of defendants, but of the coal owner.

Error from city court of Savannah; Harden, Judge.

Lester & Ravenel, for plaintiff in error.

O'Conner & O'Bryne, for defendants in error.

Simmons, J. Brown sued Smith & Kelly for damages, alleging in substance that he was engaged as a laborer in discharging a vessel laden with coal lying at the wharf of C. H. Dixon, in Savannah; that it was his duty to remain in the hold of the vessel to receive empty tubs as they were lowered into the hold, and to unhook them from the hoisting rope, and hook thereon full tubs, to be hoisted therefrom; that there was also then and there employed in discharging the vessel a certain pair of mules, the property of said Smith & Kelly, managed and controlled by their servant, these mules being attached to a rope used in hoisting the coal, and being driven by said servant of the defendants; that, during the discharging of the vessel, it was the duty of this servant, as an empty tub was loaded into the vessel, to keep the mules stationary while the plaintiff unhooked the empty tub from the rope and hitched thereto a full tub, and not to drive the mules off, or permit them to walk off, until satisfied that the plaintiff had finished the hooking and unhooking; that an empty tub had been lowered into the hold, and while he was engaged in unhooking it from the rope, and before he had finished doing so, the driver of the mules, without any signal so to do, negligently and carelessly permitted the mules to walk off, jerking the empty tub against the petitioner's hand, catching the hand between the tub and the side of the hatchway, and crushing and mashing it so as to make it necessary to amputate the third finger, depriving him of the use of his hand, and causing him to lose time and money, etc., and giving him great pain. The jury returned a verdict in favor of the defendants, and the plaintiff moved for a new trial, which was refused, the court holding that under the evidence the plaintiff was not entitled to recover, because the driver of the mules was not the servant of the...