Holliday v. Merchants' & Miners' Transp. Co.
| Decision Date | 27 February 1926 |
| Docket Number | 4512. |
| Citation | 132 S.E. 210,161 Ga. 949 |
| Parties | HOLLIDAY v. MERCHANTS' & MINERS' TRANSP. CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where one who was a member of a crew on a certain vessel then lying at the docks, a part of the terminals of the defendant, a steamship company operating ships and maintaining terminals obtained shore leave for a short time and availed himself of the permission given him under the leave to go ashore, and after two hours spent ashore and in the city, returned to the terminals and demanded entrance at a gate, which was the means of entrance to the terminals from the adjacent street even if the relationship of master and servant existing between the member of the crew referred to and the transportation company had been suspended when the member of the crew left the terminals to go into the city, that relationship came immediately into existence again as soon as the servant returned to the gate and demanded admittance.
One employed by the same master as a watchman at the gate referred to, "to protect the terminals from trespassers and to guard its property and supervise and control the entrance and exit of the employees," of the defendant was a fellow servant of the other employee, who, having left the ship on shore leave for the space of two hours, had returned and demanded entrance to the terminals to go on the ship and to his duty as a member of the crew.
And where an altercation arose between the two employees in regard to the entrance to the terminals of the member of the crew who had been absent on shore leave and had returned, and in consequence of the altercation the watchman assaulted the other employee and inflicted fatal injuries upon him, the master was not liable in a suit for damages in consequence thereof.
Certiorari from Court of Appeals.
Suit by Mrs. Della Holliday against the Merchants' & Miners' Transportation Company. Judgment for defendant was affirmed by the Court of Appeals, and plaintiff brings certiorari. Affirmed.
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.
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 case of Ellington v. Beaver Dam Lumber Co., 93 Ga. 53, 19 S.E. 21, it was said:
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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. The decedent was a member of the crew of the vessel lying at the dock. The unloading and loading of such a vessel and preparation for the voyage all involved the idea of doing the necessary work in an orderly way, promptly and expeditiously. Order and care in the handling and promptness in expedition are essential elements in the successful handling and carrying on the business of the common carrier. To meet these requirements the terminals were surrounded by a fence, and to the inclosure thus made access could be had by the gate referred to in the pleadings at which a watchman had been placed, the duty of the latter being to protect the terminals from trespassers, guard the company's property, and "control the entrance and exit of the employees of the defendant." The exclusion of trespassers and the permitting of the employees to enter without unnecessary delay and in an orderly way gave to the person having charge of the gate through which the entrance of employees was effected the character of one participating in the common pursuit in which the defendant company was engaged. He was as much engaged in that common pursuit as were the employees who assisted in loading or in discharging the cargo of the ship lying at the dock, and the members of the crew, such as the decedent was, whose work was essential to the operation of the engine that moved the vessel, was also engaged in the common pursuit, and that made him and the watchman who supervised and controlled the entrance to the terminals and to the...
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