Fulghum Industries, Inc. v. Pollard Lumber Co.

• Decision Date: 16 May 1962
• Docket Number: No. 39354,No. 3,39354,3
• Citation: 106 Ga.App. 49,126 S.E.2d 432
• Parties: FULGHUM INDUSTRIES, INC. v. POLLARD LUMBER COMPANY, Inc., et al
• Court: Georgia Court of Appeals

Page 432

126 S.E.2d 432

106 Ga.App. 49

FULGHUM INDUSTRIES, INC. v. POLLARD LUMBER COMPANY, Inc., et al.

No. 39354.

Court of Appeals of Georgia, Division No. 3.

May 16, 1962.

Syllabus by the Court

1. Assignments of error not orally argued or insisted on in briefs are considered abandoned.

2. There was sufficient evidence to authorize the jury findings:

(a) That one of the co-defendants was not, on the occasion involved, the servant of the plaintiff;

(b) That the co- defendant was negligent;

(c) That there was a causal connection between the negligence and the fire.

3. Where a portion of the record necessary to a consideration of an assignment of error is not specified in the bill of exceptions, the defect should be cured

by appropriate amendment, but the Court of Appeals may order the omitted parts certified and sent up on its own motion.

4. (a) It is not necessary that the word 'error' appear in an assignment of error if the decision complained of and alleged error are specified plainly enough to present a question for review. Further, the special grounds of the motion for new trial here are considered sufficiently complete to reach the merits of the issues involved.

(b) Where a suit is brought against two defendants as joint tortfeasors, it is error to give an instruction that in the event a verdict is returned for the plaintiff it should be against both defendants, and this is true even though as to one of the defendants the action is in default and is undefended.

Pollard Lumber Co., Inc. (plaintiff hereinafter) brouht suit against Fulghum Industries, Inc. (defendant hereinafter) and L. M. Tankersley (Tankersley hereinafter) seeking damages for the destruction by fire of a large portion of plaintiff's sawmill. Both plaintiff and Tankersley were residents of Columbia County where the suit was filed, and defendant is a resident of Jefferson County.

The factual situation may be briefly outlined as follows: Plaintiff purchased a debarking machine from defendant in December, 1959. After a complaint by plaintiff that the machine was not debarking logs properly, the defendant sent its repairman, one Thigpen, to repair the malfunction. The repair work involved some metal cutting with an electric torch and various welding and was done on Saturday, April 9. Tankersley, a colored employee of plaintiff who was not working on Saturday, assisted Thigpen as will be more fully discussed in the opinion. Thigpen finished his repairs around noon on Saturday and the sawmill burned down at approximately 8 p. m. Sunday, April 10.

With its answer, defendant filed a general demurrer and several special demurrers. All but one of the demurrers were overruled after plaintiff amended its petition. The case came on for a trial which resulted in a $30,000 verdict for plaintiff. Defendant, having previously moved for a directed verdict, moved for a judgment notwithstanding the verdict. Defendant also filed a general motion for new trial and added special grounds by amendment. Both its motion for judgment non obstante veredicto and new trial were denied.

Abbot & Abbot, Louisville, Fulcher, Fulcher, Hagler & Harper, E. D. Fulcher, Augusta, for plaintiff in error.

Randall Evans, Jr., Thomson, for defendant in error.

EBERHARDT, Judge.

1. Although error was assigned on the overruling of the defendant's demurrers, there was no oral argument on this point and no insistence thereon in the brief. Therefore, these assignments of error will be considered abandoned. Code § 6-1308.

2. Defendant's most forceful contention relates to the grounds of its motion for judgment notwithstanding the verdict. Three grounds are generally urged: (a) That Tankersley was not the servant of the defendant but was a servant of the plaintiff; (b) that there is no evidence of any negligence on the part of Tankersley; and (c) that, due to the length of time between the repair work and the fire, there could be no causal connection between that work and the fire.

(a) The testimony on the trial developed that Tankersley was a regular employee of the plaintiff and had worked for it all his adult life. On the Saturday in question, however, he was not working. An agent of the defendant had called one of plaintiff's officers, Robert Pollard, during the week to tell him that the requested repairs would be made on Saturday and to ask that plaintiff 'have a man there to help' the repairman. Pollard testified that he had forgotten about the helper until another of plaintiff's officers reminded him of it on Saturday morning. He met the repairman at a store where 'This boy, L. M. Tankersley, was in front of the store and I told him to go with [defendant's repairman] to help them fix the debarker.' To the question, 'You just picked out the first man you saw?', Pollard responded, 'That is correct.' Pollard went to the debarking machine with the defendant's repairman, Tankersley, and at least one other helper. Pollard sent the other helper to feed his cows and left Tankersley and the repairman working on the debarker. Both Tankersley and the repairman considered Tankersley as subject to the repairman's orders and both also testified that Tankersley did what he was told.

The law as to lent employees is well-settled, the test being (1) that the special master must have complete control and direction of the servant for the occasion; (2) that the general master must have no such control; (3) that the special master must have the exclusive right to discharge the servant, to put another in his place or to put him to other work. Brown v. Smith, 86 Ga. 274, 12 S.E. 411, 22 A.S.R. 456; Adams v. Johnson, 88 Ga.App. 94(1), 76 S.E.2d 135 and citations. In Bibb Mfg. Co. v. Souther, 52 Ga.App. 722, 184 S.E. 421 a factual situation strikingly similar in its 'lent servant' phases to that presented here was involved. Plaintiff repairman's employer had contracted with the defendant to make certain repairs. In the course of making the repairs, the plaintiff required some assistance and the defendant sent two negro helpers. One of the helpers negligently dropped a heavy piece of iron on the plaintiff's hand. This court held that the helper was the special servant of plaintiff's employer and, consequently, that the defendant was not liable for his negligence. The court applied the rule set out above stating that all of its requirements related only to the specific task for which the servants are loaned. For example, the 'right to discharge' that the special master must have means the right to discharge the servant from that particular work. A similar situation was presented and a similar result reached in Reaves v. Columbus Electric etc., Co., 32 Ga.App. 140(1), 122 S.E. 824. And see Carstarphen v. Ivey, 66 Ga.App. 865, 19 S.E.2d 341; Delcher Bros. Storage Co. v. Reynolds etc., Lumber Co., 80 Ga.App. 288, 55 S.E.2d 864.

Here we probably have a stronger case for holding Tankersley to be the servant of the defendant at the time in question in that the undisputed testimony is that he was not actually working for the plaintiff on Saturday. Control is the determinative factor in these cases, and the defendant had such control here. In addition, it is quite probable that Tankersley could be considered a subservant here in that there was at least implied authority for the repairman to get some help in his work. See Cooper v. Lowery, 4 Ga.App. 120, 60 S.E. 1015; Cowart v. Jordan, 75 Ga.App. 855(1), 44 S.E.2d 804; Carter v. Bishop, 209 Ga. 919(2), 76 S.E.2d 784.

Furthermore, in order for the defendant to be liable it was not even necessary that Tankersley be its servant. All that was needed was to show that he was not, on that occasion, the servant of plaintiff, the reason being that plaintiff could not recover for the negligence of its own servant. There was ample evidence here for the jury to find that Tankersley was not the plaintiff's servant.

(b) Was there any evidence of negligence on Tankersley's part? This inquiry becomes important here because, absent negligence on the part of the resident defendant (Tankersley), the nonresident defendant would be entitled to have a judgment against it set aside, no matter how gross its negligence. See Southeastern Truck Lines, Inc. v. Rann, 214 Ga. 813, 816, 108 S.E.2d 561 and cases there cited. It is undisputed that Tankersley did not at any time use either the electric torch or the welder. He was directed by Fulghum's repairman to sprinkle water in the area where the sparks had fallen from the repair work. (While there was some testimony by the repairman that one of plaintiff's officers had directed some of the water sprinkling, the jury resolved this against the defendants.)

Even conceding that the defendant can raise the issue of the lack of negligence on the part of Tankersley (see Nix v. Luke, 96 Ga.App. 123(1), 99 S.E.2d 446), we feel that the jury was authorized to find that there was some negligence on Tankersley's part in the manner in which he did the sprinkling. It was not necessary that his negligence be as great as that of the defendant in order to hold him jointly liable. Eidson v. Maddox, 195 Ga. 641, 24 S.E.2d 895.

(c) Defendant raises also the issue of proximate causation, depending primarily on the lapse of time (some 30 hours) between the last of the repair work and the fire. The plaintiff had only circumstantial evidence on which to travel but this quite frequently happens in fire cases. As was said in Gainesville etc., R. Co. v. Edmondson, 101 Ga. 747, 751, 29 S.E. 213, 214, 'But few cases will occur, however, where the fact that the fire was communicated is susceptible of direct proof. Consequently, such proof must be more or less circumstantial.' Accord: Southern Ry. Co. v. Williams, 113 Ga. 335(5), 337, 38 S.E. 744. See Central of Ga. Ry. Co. v. Trammell, 114 Ga. 312(1), 40 S.E. 259; Southern Ry. Co. v. Herrington, 128 Ga. 438(3), 440, 57 S.E. 694; Morrow v. Johnston, 85 Ga.App. 261, 68 S.E.2d 906. As to the...