Holliday v. Merch.S' & Miners' Transp. Co, (No. 4512.)

• Decision Date: 27 February 1926
• Docket Number: (No. 4512.)
• Citation: 161 Ga. 949,132 S.E. 210
• Parties: HOLLIDAY. v. MERCHANTS' & MINERS' TRANSP. CO.
• Court: Georgia Supreme Court

161 Ga. 949

132 S.E. 210

HOLLIDAY.

v.MERCHANTS' & MINERS' TRANSP. CO.

(No. 4512.)

Supreme Court of Georgia.

Feb. 27, 1926.

(Syllabus by the Court.)

Hines, J., and Russell, C. J., dissenting.

Certiorari from Court of Appeals.

Suit by Mrs. Delia Holliday against the Merchants' & Miners' Transportation Company. Judgment for defendant was affirmed by the Court of Appeals, and plaintiff brings certiorari. Affirmed.

Mrs. Delia Holliday instituted an action for damages against the Merchants' & Miners' Transportation Company, a corporation engaged in the business of a common carrier and operating steamships plying between Baltimore, Savannah, and other southern ports. The claim for damages was based on the homicide of petitioner's unmarried son, Eugene Holliday, 30 years of age, upon whom petitioner was dependent and who contributed $50 a month to her support. The petition as amended alleged that the homicide was committed by L. L. Hallman, one of defendant's employees, under the following circumstances. The defendant, in operating its line of steamships, owned and maintained certain inclosed terminals or wharves at Savannah, Ga., for the purpose of docking ships for loading and unloading. A street extended from the city to the terminals. At the foot of the street there was a lattice gate to afford ingress and egress to and from the terminals. Hallman was employed by the defendant as a watchman on the terminals, "whose duty was to protect the said terminals from trespassers and to guard its property and to supervise and control the entrance and exit of the employees of the defendant." Petitioner's son was employed in Baltimore by the defendant as "an oiler" on board its ship Juaniata. When the ship arrived at Savannah it docked at the terminals. Petitioner's son, having obtained "shore leave, " went ashore and "up into the city of Savannah" for about two hours. When he returned to go aboard the ship he found the gate closed. It was near the ship's sailing time, and he "tried to go through" the gate. He met Hallman, who was inside the inclosure, the gate separating them. He informed Hallman that he was a member of the crew of the ship, and that he desired to go aboard. Hallman refused to allow him to enter, and an argument arose. Hallman became "angered" at petitioner's son, and "picked up a heavy piece of wooden scantling" and pushed it through the opening in the lattice work of the gate and struck him on the head, and then "opened the gate and came outside, " and again struck him on the head with the scantling, producing wounds from which after a few days he died. At the time the blows were struck Hallman was on duty at the gate, and in refusing petitioner's son admittance and striking him he was "acting in the prosecution and within the scope of the business of" the defendant, and the assaults were unjustifiable. Petitioner's son was "in duty bound to be back upon" the ship before it sailed, which it was about to do. Hallman knew that if petitioner's son was guilty of any breach of discipline, either by arriving late or otherwise, he should have been carried aboard the ship and the facts reported to the commanding officer, but instead of allowing petitioner'sson to enter and go aboard the ship, or of arresting and taking him aboard the ship, Hallman committed the assaults above described for the express purpose of driving him away from the terminals and his duty aboard the ship. The defendant "had regularly in its service ten or more employees in the same business within the state of Georgia."

The judge sustained general demurrers to the petition, and the plaintiff excepted. The Court of Appeals affirmed the judgment of the trial court, and the case comes by certiorari.

Shelby Myrick and Edwin A. Cohen, both of Savannah, and Nimocks & Nimocks, of Fayetteville, N. C., for plaintiff in error.

Adams & Adams, of Savannah, for defendant in error.

ATKINSON, J. (after stating the facts as above). [1, 2] After a careful consideration of the allegations of fact set forth in the petition, we are satisfied that at the time the assault which resulted in the death of the plaintiff's son was made the relation of master and servant existed between the defendant and the decedent. The decedent was employed as "an oiler" on board of the ship then docked at the terminals of the defendant company. He was a member of the crew of the ship, and his relationship to the defendant company as an employee had not been broken or discontinued. The mere fact that he had obtained shore leave, and, availing himself of the privilege of that leave left the ship and went into the city of Savannah for about two hours, after the expiration, of which he intended to return and did return for the resumption of his duties, did not suspend his relationship; or if the relationship of master and servant between the company and the decedent was affected at all, even if it rendered that relationship "dormant" while he was actually away from the premises of the defendant company, when he returned and reached the gate through which he entered upon the terminals of the company the relationship of master and servant was resumed. In their brief counsel for plaintiff insist that at the time the decedent was killed he occupied the same relation as a nonemployee would have occupied had such nonemployee the right to go through the gate on business or otherwise, and that "the petition was not brought upon the theory that recovery could or should be had because Holliday was an employee, but his employment was alleged in order to show that he had a right to be where he was when the assault upon him was committed, and had a right to go through the gate." Whatever may have been the purpose of making the particular allegations referred to, as we have ruled above, the relationship between Holliday and the company, that is, the relationship of master and servant, was not terminated by his leaving the ship and the terminals on shore leave for the short space of two hours. Or, even if it was suspended for that short time, the relationship was resumed when he came to the gate and demanded admittance. All the allegations in the petition upon the subject must be considered, and, all being considered, the decedent was unquestionably a servant and employee of the company at the time he was injured by the assault of Hallman, the watchman. And the allegations relative to Hallman and his duties show that he was also an employee of the company. His duties were "to protect the said terminals from trespassers and to guard its property and to supervise and control the entrance and exit of the employees of the defendant.'' The Court of Appeals reached the conclusion that the decedent and the watchman were fellow servants within the meaning of our Civil Code, § 3129. And if this conclusion of the Court of Appeals, as announced in their decision, is correct, then the ruling upon this vital question, made by that court, that, the decedent and his slayer being fellow servants, the master was not liable for the death of the former at the hands of the latter under the circumstances set forth in the petition, necessarily followed.

It may be that under rulings made by courts of last resort in certain jurisdictions the watchman who slew the decedent and the latter were not fellow servants, but under decisions rendered by this court in the construction of the statute last referred to, they were fellow servants. That statute reads as follows:

"Except in case of railroad companies, the master is not liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business." Civil Code, § 3129.

It is apparent that, relatively to the question we have before us, it is necessary to decide whether the two servants of the transportation company, the watchman and the decedent, the nature of their duties being considered, were "about the same business" or were "engaged in the common pursuit, "— a phrase which we occasionally find in our decisions, which means the same thing as being "about the same business." In the ease of Ellington v. Beaver Dam Dumber Co., 93 Ga. 53, 19 S. E. 21, it was said:

"The rule for determining who are fellow servants is thus stated in Wood's Master and Servant, § 435: 'The true test of fellow service 'is community in that which is the test of service, which is subjection to control and direction by the same general master in the same common object; but unless they are subject to the same general control, the fact that they are engaged in the same common pursuit does not render them coservants. It is subjection to the same general control, coupled with an engagement in the common pursuit, that affords the test, and unless the two elements concur there can be no common service, which disentitles an employee under thecontrol of one master, from recovering for injuries received through the negligence of a servant under the control of another master.' "

And it will be seen, from reading so much of the decision as relates to the question we now have in hand, that the rule thus laid down in the text-book is adopted as the proper rule for determining questions like this. It seems to us clear that the decedent and the watchman, Hallman, who were in the employment of the transportation company, were fellow servants under the rule stated for determining who are fellow servants. They were engaged "in the common pursuit"; they were "about the same business." What was the pursuit or business in question? It was the business of the master. The master, the employer, was a common carrier. It was transporting cargoes of freight from one port to another. That transportation involved docking at the terminals, loading the freight which constituted the cargo, and reloading with return cargo, if such was at hand for transportation, and, when it was loaded, the moving of the vessel away from the dock wharf and putting it on its course for another port....