Kidd v. Williamson

• Decision Date: 15 March 1940
• Docket Number: 28027.
• Citation: 8 S.E.2d 590,61 Ga.App. 890
• Parties: KIDD et al. v. WILLIAMSON.
• Court: Georgia Court of Appeals

8 S.E.2d 590

61 Ga.App. 890

KIDD et al. v. WILLIAMSON.

No. 28027.

Court of Appeals of Georgia, Division No. 1.

March 15, 1940

Rehearing Denied March 30, 1940.

Syllabus by the Court.

This case involved the correctness of the judge's order overruling the demurrer to the plaintiff's (servant's) petition in an action by her to recover damages against the defendant (master) for personal injuries alleged to have been sustained while descending the back steps of the defendant's home and while the plaintiff was employed by the defendant as his housekeeper. The petition in effect alleged that the plaintiff was employed as housekeeper for the defendant, and, having no knowledge of carpentry or of repairing steps, assisted the defendant in repairing the same. However, thereafter, she alleged that she assisted the defendant in repairing in that "she immediately proceeded with the repairing of said steps [approximately 12 months prior to the injury], in the manner and under the express direction of the defendant who supervised the repairing, and with the tools and materials furnished her by the defendant, and petitioner shows that the defendant marked off the wood used in repairing the steps, showing petitioner where to saw it and that defendant placed and held the nails so that petitioner could hammer them in place. *** that the tread and stringer of said steps were in a rotted condition around the area where the nails used to secure the tread to the stringer were fastened, causing the nail holes to soften and enlarge and allowing the nails to become loosened." That some 12 months thereafter, she was descending said back steps (which she alleges was the "only means of exit and entrance from the rear of said dwelling house of defendant") and while so doing, one of the treads thereof slipped loose from the stringer causing her to fall and receive certain alleged injuries in the amount of $10,000. The plaintiff alleged that the defendant was negligent "in allowing said tread to remain on the stringer of the steps in its rotten condition when the defendant knew or should have known that the wood being rotten, the nails would not hold." The defendant died March 18, 1939, pending the suit, his executors were made parties, and the defendant's death was suggested of record. The plaintiff then amended her petition on April 19 1939, by striking $10,000 and inserting in lieu thereof $25,000 as the amount of damages received.

Claud F. Brackett, Roy S. Drennan, and A. J. Hall, all of Atlanta for plaintiffs in error.

Harold Karp, of Atlanta, for defendant in error.

MacINTYRE Judge.

It seems to us, construing the petition most strongly against the pleader, that the tread was in a "rotten condition" at the time of the repairing of the steps approximately 12 months prior to the injury, in which repairing the plaintiff participated "in the manner and under the express direction of the defendant who supervised the repairing, and with the tools and materials furnished her by the defendant, and petitioner shows that the defendant marked off the wood used in repairing the steps, showing petitioner where to saw it and that defendant placed and held the nails so that petitioner could hammer them in place." Thus, at the time of the repairing of the steps the servant's opportunity or means of obtaining knowledge of the material conditions, which created any risk at that time, were the same as that of the master. Whatever defects were brought about by the repair of the steps and which might have brought about a risk at that time, were within the comprehension of any adult of ordinary intelligence, irrespective of the question of whether he had or had not any special experience or training in the repair work, which they together had done on that occasion. While the servant, prior to the time of this repair was under no obligation to inspect, did not assume the risk from the failure of the master to do his duty, unless he (servant) knew of that failure and of the attendant risk, when the servant and the...