Ingram v. Hilton & Dodge Lumber Co.

• Decision Date: 21 July 1899
• Citation: 33 S.E. 961,108 Ga. 194
• Parties: INGRAM v. HILTON & DODGE LUMBER CO.
• Court: Georgia Supreme Court

33 S.E. 961

108 Ga. 194

INGRAM v. HILTON & DODGE LUMBER CO.

Supreme Court of Georgia

July 21, 1899

Syllabus by the Court.

1. Testimony offered for the purpose of proving an accord and satisfaction is inadmissible in behalf of a defendant whose answer does not set up a defense to which such testimony would be applicable.

2. Declarations made by the plaintiff in an action for personal injuries tending to show the extent of those injuries, and also having a bearing upon the amount of his compensation therefor, are admissible for the defendant.

3. A written memorandum made by a witness in reference to a conversation between himself and another is not admissible as original evidence.

4. "Subjection to control and direction by the same general master in the same common object," and not the fact that employés are paid by the same general master, is the test of fellow service.

5. In a case so requiring, the distinction between the negligence of a competent servant and the unskillfulness of an incompetent servant should be clearly pointed out to the jury.

6. A plaintiff who alleges that he was without fault, who sues for and seeks to recover full damages, and who does not request a charge upon the law of contributory negligence and apportionment of damages, has no just cause to complain of an instruction that it was incumbent upon him to show that he was free from fault.

Error from superior court, Glynn county; J. L. Sweat, Judge.

Action by William H. Ingram against the Hilton & Dodge Lumber Company. Judgment for defendant. From an order denying a new trial, plaintiff brings error. Reversed.

Owens Johnson and D. W. Krauss, for plaintiff in error.

Goodyear Kay & Brantley, for defendant in error.

LUMPKIN P.J.

This was an action by William H. Ingram against the Hilton & Dodge Lumber Company for damages resulting from personal injuries sustained by him on two distinct occasions, to wit, on August 20, 1894, and on September 16, 1895. The main charge of negligence made by the petition against the defendant was that it carelessly and knowingly employed and retained in its service inexperienced, incompetent, and unskillful workmen in and about the business in which the plaintiff was engaged as an employé of the company. The petition further alleged that the plaintiff was wholly free from negligence, and that his injuries were occasioned because of the unskillfulness and incompetency of these workmen. A verdict was returned in favor of the defendant, and the plaintiff's motion for a new trial, to the overruling of which he excepted, presents for decision the questions below discussed.

1. It is alleged that error was committed in admitting in evidence the testimony of one Foster as to an alleged accord and satisfaction between the plaintiff and the defendant with reference to the first injury complained of in his petition. The defendant's answer did not set up the defense of accord and satisfaction. We are therefore clearly of the opinion that the testimony objected to was irrelevant and ought to have been excluded.

2. The court, over the plaintiff's objection, allowed one Dodge to testify to certain statements made to him by the plaintiff while the latter was confined by sickness resulting from the injuries received in August, 1894. These statements were to the effect that the plaintiff said he would be able to go to work on the 1st day of the following November, and would be satisfied if the expenses of his illness were paid up to the time he was able to resume work. We think this evidence was admissible, as it had some bearing upon the extent of the plaintiff's injuries, and the amount of compensation to which he was entitled in case the defendant was found liable.

3. In one ground of the motion for a new trial it is alleged that the court erred in allowing a written memorandum made by the witness Foster in reference to a conversation between himself and the plaintiff to be introduced in evidence. This memorandum was clearly inadmissible for any purpose. It did not purport to have been signed by the plaintiff, and was in no way binding upon him. It might have been proper enough to allow Foster to refer to this paper for the purpose of refreshing his memory, if need be, but it had no value whatever as original evidence.

4. The court, among other things, charged the jury that "where a number of employés of a common master or employer are engaged in a common enterprise, and are paid by a common master or employer, then, regardless as to the department in the enterprise under which they are employed and may be engaged in rendering service, they are...