Georgia Highway Express, Inc. v. Rountree, 48726

• Decision Date: 06 February 1974
• Docket Number: No. 48726,No. 2,48726,2
• Citation: 130 Ga.App. 792,204 S.E.2d 512
• Parties: GEORGIA HIGHWAY EXPRESS, INC., et al. v. Samuel L. ROUNTREE
• Court: Georgia Court of Appeals

Page 512

204 S.E.2d 512

130 Ga.App. 792

GEORGIA HIGHWAY EXPRESS, INC., et al. v. Samuel L. ROUNTREE.

No. 48726.

Court of Appeals of Georgia, Division No. 2.

Feb. 6, 1974.

Fendig, Dickey, Fendig & Whelchel, Anthony D. Smith, Brunswick, for appellants.

Taylor, Bishop & Lee, A. Blenn Taylor, Jr., Brunswick, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

Via an immediate review certificate Georgia Highway Express and its employee, Alton Bowen, defendants in a personal injury suit based on their alleged negligence instituted by Rountree, have appealed the denial of their motion for summary judgment.

On September 23, 1971, defendant Alton Bowen, an employee of the co-defendant, Georgia Highway Express, Inc., drove a tractor- trailer unit on behalf of his employer to the offices of McInnis Electric Company in Brunswick, Georgia. Plaintiff Rountree was an employee of the McInnis concern which had directed him to assist in unloading the tractor-trailer driven by Bowen. Bowen began to back the truck through the gate of the fenced-in yard adjacent to and contiguous with the McInnis building. When half-way through he stopped the unit. Plaintiff, along with other employees of McInnis Electric Company, had assisted Bowen by directing the movements of the Georgia Highway Express vehicle and in unloading several cartons from the trailer at this location. Bowen was then asked to back the truck further to enable McInnis' employees to unload at a different location. To accomplish this it was necessary to drive the rig forward so that Bowen could then back again.

At this point the gate post was approximately positioned in the middle of the trailer with the cab turned so that Bowen could not view the left side of the trailer. To assist Bowen in his task Rountree stationed himself on the unit's left side near the post. Another McInnis employee, Sonny Smith, was stationed in the street in the vicinity of the cab. As Bowen pulled the unit forward it became apparent to Rountree that the trailer was going to hit the fence post; rather than immediately moving to safety Rountree remained at that position so he could holler to Sonny Smith to have Bowen stop the rig. After repeatedly yelling to Smith plaintiff turned in an effort to find a safe position but was struck in the leg by the gate post which had in turn been hit by the trailer.

1. Defendants contend that they owed plaintiff a duty less than ordinary care since in assisting Bowen he was a mere volunteer. In support of their contention defendants rely upon the rule that: 'One who, without any employment whatever, but at the request of a servant who has no authority to employ other servants, voluntarily undertakes to perform services for a master, is a mere volunteer, and the master does not owe him any duty, except the same duty he owes to a trespasser; that is, not to injure him wilfully or wantonly after his peril is discovered.' Central Railway Co. v. Mullins, 7 Ga.App. 381(1), 66 S.E. 1028; Hornsby v. Haverty Furniture Co., 85 Ga.App. 425, 69 S.E.2d 630; Rooks v. Jordan, 115 Ga.App. 360, 154 S.E.2d 746.

While we have no quarrel with this principle, it is not applicable in the case sub judice. More in point is Hughes v. Weekley Elevator Co., 37 Ga.App. 130, 134, 138 S.E. 633, 635, wherein this court held that "One assisting the servants of another to facilitate his own business, or that of one to whom he sustains a contractual business relation, mutually beneficial, is not a volunteer.' Davis v. Savannah Lumber Co., 11 Ga.App. 610(2), 75 S.E. 986.' See also Southern Railway Co. v. Benton, 57 Ga.App. 520, 523, 196 S.E. 256, 258, in which this court ruled: 'Under the allegations of the petition, the plaintiff was, at the time of his injury, engaged in an act, beneficial and to direct interest to himself, as well as to the defendant . . . and in no sense of the...