Cooper v. Lowery

• Court: Georgia Court of Appeals
• Writing for the Court: HILL
• Citation: Cooper v. Lowery, 4 Ga.App. 120, 60 S.E. 1015 (Ga. App. 1908)
• Decision Date: 30 March 1908
• Docket Number: (No. 853.)
• Parties: COOPER et al. v. LOWERY.

60 S.E. 1015

4 Ga.App. 120

COOPER et al.

v.LOWERY.

(No. 853.)

Court of Appeals of Georgia.

March 30, 1908.

Master and Servant—Negligence of Servant—Liability of Master.

If a servant, who is employed to do certain work for his master, employs another person to assist him, the master is liable for the negligence of the assistant only when the servant had authority, express or implied, to employ him, or when the act of employment is ratified by the master.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1211.]

(Syllabus by the Court.)

Error from City Court of Hall County; H. H. Dean, Judge pro hac.

Action by D. W. Lowery against H. J. Cooper and others. Judgment for plaintiff, and defendants bring error. Reversed.

Geo. N. Looper and B. P. Gaillard, Jr., for plaintiffs in error.

H. L. Patterson, for defendant in error.

HILL, C. J. The plaintiff brought this action to recover damages for personal injuries caused by the negligence of an alleged servant of the defendants. The controlling question presented by the record is whether the person whose negligence caused the injury was a servant of the defendants. On this question there is no material conflict in the evidence, which is briefly as follows: The defendants were the owners of a guano factory, and sold and delivered their guano from the factory. They employed a servant to deliver the guano to purchasers. This servant had no authority, express or implied, from the defendants to employ any one to assist him in such work. On the occasion when the plaintiff received the injuries complained of, the servant had employed a negro boy to assist him in delivering the guano at the factory, and this assistant, while in the act of loading a sack of guano on the wagon of the plaintiff, injured him by his negligence. The testimony is positive and uncontradicted that the servant of the defendants had no authority, either express or implied, to employ an assistant for this work, and that the employment of the assistant in question was without the knowledge or consent of the defendants, and the unauthorized act was in no wise ratified by them.

The trial judge instructed the jury on this subject as follows: "The master is liable for the negligence of a person whom the servant has procured to aid him in his work, where the negligent act resulting in the injury complained of occurred in the course of the work." This charge is assigned as error. We think this charge incorrectly interpreted the law on this particular point. If the servant who was employed to perform certain work for his...