Holliday v. Merchants' & Miners' Transp. Co.

• Decision Date: 11 August 1924
• Docket Number: 15375.
• Citation: 124 S.E. 89,32 Ga.App. 567
• Parties: HOLLIDAY v. MERCHANTS' & MINERS' TRANSP. CO.
• Court: Georgia Court of Appeals

124 S.E. 89

32 Ga.App. 567

HOLLIDAY v. MERCHANTS' & MINERS' TRANSP. CO.

No. 15375.

Court of Appeals of Georgia, Second Division

August 11, 1924

Syllabus by the Court.

Where an employee upon a ship, while the ship was docked, obtained leave for a few hours to go into an adjacent city, he was in the course of his employment as he attempted, on his way back to the ship, to enter a gate maintained by his master between its private docks and terminals and a public street, for the entrance and exit of the master's employees, the relation of master and servant not being suspended, though perhaps being dormant.

Although such employee entered his contract of employment in the city of Baltimore, Md., to perform service as an oiler on board a ship plying between that city and Savannah, Ga., and other southern ports, he and one employed by the same master as a watchman at such gate, for the purpose of controlling the entrance and exit of the master's employees, were fellow servants, they both being engaged in labor for the furtherance of the general purposes of the same business of the common master.

Where the watchman, while acting within the scope of his employment, killed the other employee upon a dispute arising about the right of the latter to enter the gate, the injury and death of the one arose from the misconduct of the other as a fellow servant about the same business, and the master was not liable in an ordinary suit for damages therefor.

Error from City Court of Savannah; Davis Freeman, Judge.

Action by Della Holliday against the Merchants' & Miners' Transportation Company. Judgment for defendant, and plaintiff brings error. Affirmed.

p>Page Nimocks & Nimocks, of Fayetteville, N. C., for plaintiff in error.

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

BELL J. (after stating the facts as above).

The case is one which suggests a number of questions in relation to the application of the Georgia Workmen's Compensation Act. The plaintiff in error insists that this law is excluded because the decedent's employment was maritime. This position is clearly untenable, for the reason that the homicide occurred on land. State of Washington v Dawson, 44 S.Ct. 302, 68 L.Ed. 646, and cases therein cited. See, also, annotations 11 A.L.R. 1145; 25 A.L.R. 1008. In tort cases the principal test of admiralty jurisdiction is the locus of the injury. 1 R.C.L. 417, § 19. For reasons to be more fully indicated below, we cannot agree that the act of Congress of June 10, 1922 (Federal Statutes Annotated Supp. 1922, p. 225 [U. S. Comp. St. Ann. Supp. 1923, §§ 991 (3), 1233]), purporting to except the master and members of the crew of a vessel from the workmen's compensation laws, has any bearing on the case, irrespective of the actual validity and effect of that act. See Washington v. Dawson supra.

Another question suggested is whether the decedent and the defendant could be subject to the Workmen's Compensation Act in view of the fact that the contract of employment was made in another state, and contemplated services only upon the sea. There are decisions holding that the compensation laws, as to parties who may elect to accept or reject their provisions, create an incident to the contract of employment. Does the law of this state operate contractually? If so, could it be said that the decedent and the defendant had it in mind when they made their contract in Maryland, with no other duties to be performed in the state of Georgia than as indicated in the petition? We do not think it at all necessary to enter into a discussion of these questions at this time. See 28 R.C.L. 724, §§ 19, 20. State ex rel. Chambers v. Hennepin County, 139 Minn. 205, 166 N.W. 185, 3 A.L.R. 1351; Crane v. Leonard, 214 Mich. 218, 183 N.W. 204, 18 A.L.R. 292; Reynolds v. Day, 79 Wash. 499, 140 P. 681, L.R.A. 1916A, 432, 5 N.C.C.A. 814, 815; Spratt v. Sweeney, 168 A.D. 403, 153 N.Y.S. 505, 9 N.C.C.A. 918; Post v. Burger & Gohlke, 216 N.Y. 544, 111 N.E. 351, Ann.Cas. 1916B, 158, 10 N.C.C.A. 888; State ex rel. Jarvis v. Daggett, 87 Wash. 253, 151 P. 648, L.R.A. 1916A, 446, 10 N.C.C.A. 688; American Radiator Co. v. Rogge, 86 N. J. Law, 436, 92 A. 85, 7 N.C.C.A. 144; In re Gould, 215 Mass. 480, 102 N.E. 693, Ann.Cas. 1914D, 372, 4 N.C.C.A. 60; Kennerson v. Thames Towboat Co., 89 Conn. 367, 94 A. 372, L.R.A. 1916A, 443.

Clearly the present action would not be affected, on demurrer thereto, by the possibility of a workmen's compensation law in the state of Maryland. We could not presume that there is such a law in that state. Nothing else appearing, we would take it that the common law prevails there.

It is also insisted in the briefs for the plaintiff in error that her case is not ousted by the compensation act of this state, because the decedent was killed by the willful assault of a fellow servant, and that his death did not arise out of his employment, it not appearing that the employer should have known of or anticipated the slayer's violent or vicious character. We think that the cases are generally to the effect that, where a servant is injured by a fellow servant, in a dispute arising over the conduct of the master's business, the injury will not be held not to arise out of the employment, though it may have been unjustifiably and willfully inflicted, whether the vicious or violent character of the assailant was known or should have been anticipated by the master. We do not undertake to say what should be the rule under the Georgia act. Compare Pinkerton National Detective Agency v. Walker, 30 Ga.App. 91, 117 S.E. 281. Upon the subject generally, see the cases and citations in the following: 15 A.L.R. 574, 576, 584, 586, 588, 589; 21 A.L.R. 758; 6 N.C.C.A. 1010, 1030; 16 N.C.C.A. 930, 934; 17 N.C.C.A. 962, 963; 18 N.C.C.A. 1048, 1049, 1054; 11 N.C.C.A. 240, 243; 18 N.C.C.A. 1050-1053; 14 N.C.C.A. 224; 8 L.R.A. Digest, Workmen's Compensation, §§ 47, 50.

If the decedent and the transportation company were otherwise subject to the provisions of the compensation law, the mere fact that the plaintiff might not be able to show that the death of her son arose out of and in the course of his employment would not afford a reason for bringing an ordinary suit for damages. If the parties to the contract were in their relation subject to this law, the plaintiff's only redress against the employer would be under it, and if she had none there because of the particular facts, she would not merely for that reason be entitled to maintain this action. Where the act is operative it is exclusive as between the employee and employer. See Georgia Workmen's Compensation Act, § 12 (Ga. L. 1920, p. 167).

While we have stated that certain questions are suggested, and have referred to some of them above, according to our view of this case, it actually involves two questions, and two only. First, was the decedent in the course of his employment at the time of the homicide? Second, were he and his slayer fellow servants? If both of these questions are answered in the affirmative, the plaintiff cannot recover in this action, irrespective of whether she might successfully prosecute a claim before the Georgia Industrial Commission. This is so because, except in the case of railroad companies, and aside from the compensation act, 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 1910, § 3129.

The decedent left his ship to go into the city on leave. If the relation of master and servant was thereby temporarily interrupted or suspended, then the decedent, as to the transaction in which he met his death, should be regarded as a stranger, and the company would be liable for such tort of the watchman, while he was acting within the scope of his employment. The liability, however, would not be that of a master, but such as the defendant would owe even to a stranger for a tort committed by his servant in the prosecution of his business. See 4 Labatt's Master & Servant (2d Ed.) 4035, 4669, 4679; Savannah, etc., R. Co. v. Flannagan, 82 Ga. 579 (10), 9 S.E. 471, 14 Am.St.Rep. 183; Snowball v. Seaboard Air Line Ry., 130 Ga. 83, 85, 60 S.E. 189; Seaboard Air Line Ry. v. Chapman, 4 Ga.App. 706, 711, 62 S.E. 488; Cox v. U.S. Coal & Coke Co., 80 W.Va. 295, 92 S.E. 559, L.R.A. 1918B, 1118; Smith v. Humphreyville, 47 Tex.Civ.App. 140 (7), 104 S.W. 495; Missouri, K. & T. Ry. Co. v. Hendricks, 49 Tex.Civ.App. 314 (10), 108 S.W. 745.

We do not think, however, that the relation of master and servant was wholly suspended at the time the decedent in this case was killed, though possibly it was dormant. The defendant's grant of shore leave implied a requirement that the employee should return. Masters of vessels have seemingly a peculiar control over the members of the crew even upon land. See Penal Code 1910, §§ 689-695; Moore v. Manchester Liners, 79 L. J. K. B. 463, 467. The decedent had arrived at the gate provided for the entrance and exit of employees, and was virtually upon the company's premises. If his death arose in the course of his employment, and if the watchman was his fellow servant, it is immaterial to the present consideration whether his death arose out of his employment or not. Aliter if the question were whether a case could be made out before the Industrial Commission. Upon the question of the existence of the relation of master and servant between him and the company at the time and place of the decedent's death, the case seems to be controlled in principle by the decision of this court in Dwan v. Great Eastern Lumber Co., 15 Ga.App. 108 (2), 82 S.E. 666, wherein it was held that where, in order to go to his home, an employee had "knocked off" work, without having completed the labors he was...