Dekle v. Southern Bell Tel. & Tel. Co.

• Citation: 208 Ga. 254,66 S.E.2d 218
• Decision Date: 09 July 1951
• Docket Number: No. 17448,17448
• Parties: DEKLE v. SOUTHERN BELL TEL. & TEL. CO.
• Court: Supreme Court of Georgia

Page 218

66 S.E.2d 218

208 Ga. 254

DEKLE v. SOUTHERN BELL TEL. & TEL. CO.

No. 17448.

Supreme Court of Georgia.

July 9, 1951.

Rehearing Denied July 24, 1951.

Syllabus by the Court.

The judgment of the Court of Appeals, for the reasons set out in the following opinion, must be affirmed.

The plaintiff in error filed suit against the City of Thomasville, Southern Bell Telephone and Telegraph Company, and Wright and Lopez, Inc., to recover damages for injuries to the person, alleged to have been sustained when the plaintiff fell into an excavation located in a public street of said city. We shall refer to the plaintiff in error as the plaintiff, to the City of Thomasville as the city, to Southern Bell Telephone and Telegraph Company as the telephone company, and to Wright and Lopez Inc. as the construction company. The telephone company filed a general demurrer to the petition, which was overruled by the trial court. The telephone company excepted to this order overruling its demurrer. The Court of Appeals reversed the trial court. This case comes to this court by writ of certiorari from the Court of Appeals. The first assignment of error complains of the judgment of the Court of Appeals in holding that, 'Construing the petition most strongly against the plaintiff, it alleges that Southern Bell hired Wright & Lopez, Inc., as an independent contractor'. [83 Ga.App. 261, 63 S.E.2d 275, 277.] The second assignment of error complains that the judgment of the Court of Appeals was error in holding that the telephone company was not liable, conceding that the construction company was an independent contractor.

Lebbeus Dekle, Thomasville, for plaintiff in error.

Titus & Altman, Thomasville, for defendant in error.

ANDREWS, Judge.

The plaintiff alleges that the construction company was a corporation. Every corporation is formed for the purpose of transacting some particular business or the execution of plan or purpose according to some fixed method. A corporation possesses such powers and such powers only, as are expressly or impliedly granted by its charter, or such as are necessary to carry into effect the powers expressly granted.

A corporation may be created and empowered to act as the agent for an individual, partnership, or another corporation. A corporation is usually created for the purpose of carrying on an independent business and not for the purpose of acting as agent, employee, or servant of another. The plaintiff alleges that the telephone company employed the construction company to make in the street the excavation into which the plaintiff is alleged to have fallen. An independent contractor may be employed by an employer to perform a certain work, as well as an agent or servant to do such work. The plaintiff makes no allegation that the construction company acted as the agent or servant of the telephone company in making the excavation or in the commission of the acts and omissions alleged to be the cause of the plaintiff's injuries. Neither does he allege that the telephone company thus acted by and through its agent, employee, or servant.

There is no allegation in the petition that the telephone company retained or exercised any control or direction over the manner or method of doing the work undertaken by the construction company, or any of its agents, employees, or servants. In effect, the plaintiff merely alleges that the telephone company employed the construction company to do the work in question, and that it did the work thus stipulated. The allegations of the petition disclose that all acts and omissions of alleged negligence were the acts and omissions of the construction company, and that the same were acts and omissions of alleged collateral negligence. Under the allegations of the petition the telephone company did not create or maintain the alleged unsafe condition in the street. Construing the petition most strongly against the plaintiff, it shows that the construction company acted as an independent contractor of the telephone company in the performance of the work in question.

Under the common law an employer generally was not liable for the torts committed by an independent contractor. This common-law rule is incorporated in section 105-501 of the Code of 1933, which provides: 'The employer generally is not responsible for torts committed by his employee when the latter exercises an independent business, and in it is not subject to the immediate direction and control of the employer.'

This rule of non-liability of an employer for the torts of an independent contractor is subject to certain exceptions. There has been a recent tendency by court decisions in other jurisdictions to extend these exceptions. In Ridgeway v. Dowing Company, 109 Ga. 591, 593, 34 S.E. 1028, the court says: 'The question of the extent to which an employer is relieved from liability for the acts or negligence of an independent contractor employed by him has been much discussed by the courts, and conflicting decisions have been rendered thereon. The general rule, which is well established, is that an employer is not liable for the acts or negligence of a contractor who has complete control of the work, and of the persons employed by him to perform it. To this rule there are certain exceptions, and it is with reference to these exceptions that we find the decisions conflicting. Some of the exceptions seem to be recognized by all the courts, while as to others the authorities are not harmounious.' Whatever may be the exceptions to the general rule recognized in other jurisdictions, the same have been determined in this State by legislative enactment and are now embodied in Code, § 105-502, as follows: 'The employer is liable for the negligence of the contractor----

'1. When the work is wrongful in itself, or, if done in the ordinary manner, would result in a nuisance; or,

'2. If, according to previous knowledge and exprience, the work to be done is in its nature dangerous to others, however carefully performed; or,

'3. If the wrongful act is the violation of a duty imposed by express contract upon the employer; or,

'4. If the wrongful act is the violation of a duty imposed by statute; or,

'5. If the employer retains the right to direct or control the time and manner of executing the work; or interferes and assumes control, so as to create the relation of master and servant, or so that an injury results which is traceable to his interference; or,

'6. If the employer ratifies the unauthorized wrong of the independent contractor.'

In Ridgeway v. Downing Co., supra, the court further declares: 'As this section of the Code undertakes to declare when the employer shall be liable for the negligence of the contractor, and specifically enumerates the instances in which he shall be, we think it is exhaustive of the subject,--that the only instances in which an employer of an independent contractor is liable for the negligence of such contractor are those therein enumerated and defined.'

Does the case now before the court come within the first exception? The telephone company had a right to construct, maintain, and operate telephone lines along, over, and under public highways of this State, with the approval of the municipal authority over such highways, subject to certain provisions. Code, § 104-205. The telephone company had a right to use the street in a manner entirely distinct from that of the public. Each of these rights is subject to those restrictions necessary to the exercise of the other. Press v. Penny, 242 Mo. 98, 145...