Georgia Elec. Co. v. Smith, 40388
| Decision Date | 20 January 1964 |
| Docket Number | 3,2,Nos. 1,No. 40388,40388,s. 1 |
| Citation | 108 Ga.App. 851,134 S.E.2d 840 |
| Parties | GEORGIA ELECTRIC COMPANY v. Ed. SMITH |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. Where a person hires his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as the servant of the person to whom he is hired, although he remains the general servant of the person who hired him; and, where the contract of hiring requires the furnishing of a competent servant, the breach of such contract by the failure to furnish a competent servant does not constitute an actionable tort unless it be shown that the hirer knew, or in the exercise of ordinary care should have known, that the servant was incompetent and that the incompetency resulted in damage to the party to whom the servant was hired. It follows that upon application of the above principles to the first count of the petition in the instant case, which failed to allege that the hirer knew or in the exercise of ordinary care should have known that the servant was incompetent, the first count of the petition failed to set forth a cause of action and the trial court erred in overruling the general demurrer thereto.
2. As distinguished from the first count, the second count of the petition set forth a cause of action on the theory of respondeat superior by alleging that the defendant was an independent subcontractor who, alone, directed and controlled the work of its servant whose negligence caused that damage to plaintiff, and the trial court did not err in overruling the general demurrer thereto; however, upon the trial of the case, the uncontradicted evidence conclusively showed that the case fell within the rulings of headnote 1 above. The trial court, therefore, erred in overruling the defendant's motion for a judgment notwithstanding the mistrial (verdict) as to count 2 of the petition. Code Ann. § 110-113; Gordy Tire Company v. Bulman, 98 Ga.App. 563, 106 S.E.2d 332.
Smith, Gardner, Kelley & Wiggins, Fred E. Bartlett, Jr., Albany, for plaintiff in error.
Frank F. Faulk, Jr., Albany, for defendant in error.
The plaintiff, Ed. Smith, brought an action against the defendant, Georgia Electric Company, seeking to recover damages to a truck owned by the plaintiff resulting from the falling of a chimney in the demolition of some buildings which buildings were being demolished by the plaintiff, as a general contractor. The fall of the chimney was alleged to have been occasioned by the negligence of the operator of a backhoe, a piece of heavy mobile equipment used to dig trenches and holes, which plaintiff had rented from defendant together with an operator at a rental of a certain sum per hour. The defendant filed general and special demurrers to the petition and plaintiff amended by dividing the petition into two counts.
1. The first count alleged a rental of the equipment with the operator, and, construing the allegations most strongly against the pleader, Smith & Sons, Inc. v. Mathis, 217 Ga. 354, 122 S.E.2d 97, the various paragraphs alleged facts which conclusively show that the operator of the machine was under the control and direction of the plaintiff in the work he was to do, and did do, with the machine, and that the defendant therefore was not liable to the plaintiff under the doctrine of respondeat superior. See, in this connection, Smith & Sons, Inc. v. Mathis, 217 Ga. 354, 122 S.E.2d 97; Greenberg & Bond Co. v. Yarbrough, 26 Ga.App. 544, 106 S.E. 624; Postal Telegraph-Cable Co. v. Tucker, 33 Ga.App. 525, 126 S.E. 860. An amendment to this count of the petition alleging that 'anything set forth in this petition with respect to plaintiff's undertaking generally to point out or direct the work to be done with said machine shall be understood to show that plaintiff exercised no control whatever over the time and manner of the work which was performed at his instance and general direction with said machine by the servant and operator of the defendant'; and, that 'plaintiff hereby expressly amends each and every paragraph in his petition relating to the direction or control of the work done by the defendant's operator so that the same will conform to this allegation that the plaintiff exercised no authority, direction or control over the time and manner of said work, irrespective of whether the defendant was an independent contractor or an agent engaged in the excavation work of the plaintiff's project,' was filed. This amendment was not effective as striking the particular factual allegations of the first count to the contrary.
However, there are allegations in the first count of the petition that the defendant agreed to furnish a skilled operator of the equipment, and the failure to do so was alleged as a ground of negligence on the part of the defendant.
'Mere breach of a contract cannot be converted into a tort by showing that failure to perform upon the part of the one committing the breach had resulted in' damage 'to the other pa...
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