Howell v. Atkinson

• Decision Date: 25 November 1907
• Docket Number: 469.
• Citation: 59 S.E. 316,3 Ga.App. 58
• Parties: HOWELL v. ATKINSON.
• Court: Georgia Court of Appeals

59 S.E. 316

3 Ga.App. 58

HOWELL v. ATKINSON.

No. 469.

Court of Appeals of Georgia

November 25, 1907

Syllabus by the Court.

Lien laws, being in derogation of the common law, are to be strictly construed, and he who claims a lien must show that there was a contract by the terms of which he is entitled to the lien he claims.

[Ed Note.-For cases in point, see Cent. Dig. vol. 32, Liens, §§ 1, 2.]

"Primarily a clerk in a mercantile establishment is not a 'laborer' in the sense in which that word is used in section 1974 (now section 2792, Civ. Code 1895) of the Civil Code of 1882, even though the proper discharge of his duties may include the performance of some amount of manual labor." When a clerk seeks to foreclose a lien as a laborer, he assumes the burden of proving that the labor he contracted to perform, as well as such as he did in fact perform, was mainly physical, and that by reason of the nature of his employment he can properly be classed as a laborer.

[Ed Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 129, 130.

For other definitions, see Words and Phrases, vol. 5, pp 3952-3968; vol. 8, p. 7700.]

If the contract of employment of a clerk in a store contemplates that his services are to consist mainly of work requiring mental exercise or personal influence in inducing custom, and involving the use of his intellectual faculties, rather than work dependent upon physical power to perform manual labor he would not be a laborer. "If, on the other hand, the work which the contract requires the clerk to do was, in the main, mere manual labor, he would be a laborer."

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 129, 130.]

The nature of the labor to be performed, and whether the mental element preponderates or not, is to be determined by the contract of employment; and, while the facts and circumstances as to the duties actually performed may be considered, where the contract of employment rests in parol, in determining what was the real contract, the nature of the duties required to be performed under the contract classifies one as a laborer or as not a laborer. One who claims a laborer's lien must be classified with reference to the character of the services required of him by his employer under the terms of the contract of employment.

The evidence being insufficient to establish the fact that the plaintiff was a laborer, the certiorari should have been sustained.

Error from Superior Court, McDuffie County; H. C. Hammond, Judge.

Action by J. L. Atkinson against R. L. Howell. Judgment for plaintiff was affirmed on certiorari, and defendant brings error. Reversed.

G. L. Callaway, for plaintiff in error.

Jno. T. West, for defendant in error.

RUSSELL J.

The defendant in error sought to foreclose a laborer's lien in a justice's court against the plaintiff in error. The defendant filed counter affidavits, contesting and denying the existence of the alleged lien. The plaintiff claimed a lien for $41.10. The jury in the justice's court returned a verdict in his favor for $38.94. The defendant carried the case, by certiorari, to the superior court, the certiorari was overruled, and he excepts to that judgment. The petition for certiorari presents various assignments of error which need not here be considered. One question is involved which is determinative of the case. Was the evidence on the trial in the justice's court sufficient to authorize the finding that the plaintiff was a laborer? He was proceeding to foreclose a lien as such. It is a quick remedy, but also a harsh one. In any event, he had the right, if the defendant owed him, to sue and recover; but, unless he was a laborer, he was not entitled to that remedy provided expressly and primarily for those who toil and in the sweat of their brows earn their bread. The liberality of judicial decision has added largely to the number of those included within the class known as laborers or laboring people. The writer doubts not, after a review of the earlier cases upon this subject, but that the tendency of judicial interpretation has been to increase the number of those included in the laboring classes far beyond the bounds originally contemplated by legislative wisdom. There are few subjects which have been oftener before the Supreme Court than the question, "Who is a laborer?" That there is apparent conflict in the definitions given by the court in different decisions is recognized by Justice Lumpkin in Oliver v. Macon Hardware Company, 98 Ga. 249, 25 S.E. 403, 58 Am.St.Rep. 300; and in that decision certain rules for the determination, from the facts in each particular case, of the question whether a certain individual is or is not a laborer, are enumerated; and we shall base our decision in this case upon these rules. Before we come to that portion of the case, however, in view of the fact that "in any given case the question whether or not a clerk is entitled as a laborer to a summary lien against the property of his employer must be determined with reference to its own particular facts and circumstances," and in view of the further fact that we shall, in this case, deal only with the evidence submitted on the trial in the justice's court, it is proper to inquire into the nature of the burden devolving upon the plaintiff in such a case as this.

Every plaintiff carries the burden of establishing his case as laid. If the plaintiff had brought an ordinary suit, it would have devolved upon him to prove that the defendant was indebted to him in the amount he claimed. When he claims a special lien as a laborer for that amount, the burden he assumes is increased. It then devolves upon him to show that the defendant owes him not only the amount claimed, but, in addition, to show that he is entitled, under the evidence and by law, to that special preference and priority which results from his lien, if established. Lien laws, being in derogation of the common law, must be strictly construed, and he who claims a lien must show that there was a contract, by the terms of which he was entitled to the lien he claims.

It is strenuously insisted by learned counsel for defendant in error that the determination of the issue as to whether one is a laborer is dependent upon the facts of each particular case, and that, the jury in this case having passed upon the facts and adjudged the defendant in error to be a laborer their verdict should not be disturbed. Nothing is further from the intention of this court than to interfere with the prerogative of the jury in the ascertainment of the truth or the settlement of the true issues of fact; but the nature and amount of proof necessary to establish an essential fact is determined by law. The nature of the proof is not only declared, but it has also been adjudicated, that as to one claiming to be a laborer the proof must show that his duties, as defined by his contract of employment, and the requirements of his employer, are mainly physical. It will not suffice to show that some of his duties are physical or manual in their nature, while some of the labor he is required to perform depends upon the exercise of his intellectual faculties. This must be shown, it is true, but the proof must go further, and must establish the ratio and proportion between the two, and must demonstrate that in the labor required to be performed by the employé the manual or physical preponderates over the mental. It is as much a part of the burden which the plaintiff has to carry to establish this fact of preponderance of physical duties as it is to show that the defendant owes him at all, if he wishes to entitle himself to those special privileges of priority of lien accorded by law to the laborer. The plaintiff in this case did not, in our opinion, establish the right of his claim to the priority of a laborer's lien; because the evidence does not disclose or give any intimation that the major portion of his duties under the contract of employment were to be those of laborer, or that the major portion of the duties he actually performed at the requirement or with the assent of his employer were manual. Whether the contract of employment be oral or in writing, it is by the contract of employment primarily that the nature of the duties of the employé is to be determined, and from the contract primarily it is to be ascertained whether the major portion of the employé's service requires the exercise of the intellectual faculties, or whether the major portion of his duties are such as require only the use of physical force, strength, and endurance. Of course, there may be a novation of the contract growing out of a requirement of different or additional services at the hands of the employé from those originally contracted for, and his assent to and performance of these new duties. Or the employer may, by assenting to the performance of duties by his employé, which are mainly physical and whereby the major portion of the service performed becomes mere manual labor, himself consent to the creation of a new contract, and thereby...