Maxwell v. Harrell

• Decision Date: 25 January 1967
• Docket Number: 42528,No. 3,Nos. 42527,s. 42527,3
• Citation: Maxwell v. Harrell, 153 S.E.2d 653, 115 Ga.App. 97 (Ga. App. 1967)
• Parties: Willie M. MAXWELL v. Lannis HARRELL, by Next Friend et al. Willie M. MAXWELL v. R. L. HARRELL et al
• Court: Georgia Court of Appeals

Page 653

153 S.E.2d 653

115 Ga.App. 97

Willie M. MAXWELL v. Lannis HARRELL, by Next Friend et al.

Willie M. MAXWELL v. R. L. HARRELL et al.

Nos. 42527, 42528.

Court of Appeals of Georgia, Division No. 3.

Jan. 25, 1967.

Syllabus by the Court

The first grant of a new trial in this case was not an abuse of discretion on the part of the trial judge.

This is an appeal from the first grant of a new trial. The defendant Maxwell, a landowner, contracted with the defendant Powe to construct a dam across a stream. Subsequently, Maxwell found he could have governmental aid by doing additional work in having the pond bottom and banks cleared of trees and brush. Powe volunteered to obtain some labor for him which would cost him $5 or $6 per day per head, and to do the remaining work with his bulldozer (already at the scene for use on the dam contract) at a charge of $12.50 per hour. In accordance with this separate agreement, which was carried out by the parties, Powe brought the plaintiff to the work site and engaged him in helping snake out logs. Another workman hired for the brush cleaning job cut down a tree on the other side of the pond which fell on the plaintiff, injuring him. On the trial of the case the jury returned a verdict in favor of Maxwell and against Powe for a small amount. On the plaintiff's motion a new trial was granted as to both.

Alexander, Vann & Lilly, Frank T. Holt, Thomasville, for appellant.

Bell & Baker, R. A. Bell, Robert L. Bell, Cairo, for appellees.

DEEN, Judge.

1. While the master is not ordinarily liable for the negligence of a fellow servant (Code § 66-304) he is liable for his own negligence or that of his vice principal acting for him. Woodson v. Johnston & Co., 109 Ga. 454(1), 34 S.E. 587. There was evidence in the record to support the allegations of the petition that Powe had sent a fellow servant into the area on the other side of the proposed pond to cut trees, and thereafter sent the plaintiff into the area where he was injured to attach a log to the snaking chain, knowing that the tree felling work was in progress. An inference was authorized that the injury was not due to any negligence on the part of the tree cutter, but to the negligence of Powe in sending the plaintiff into a place of danger. Since the special damages proved by the plaintiff were in excess of the verdict rendered, and the evidence in addition showed severe and painful injuries, the trial judge did not abuse his discretion in granting a new trial to the plaintiff as against Powe.

2. Nor was there error in granting a new trial as against Maxwell unless the trial judge abused his discretion and no other verdict than that rendered could have been returned. Code Ann. § 6-1608. '(W)here one is employed generally to perform certain...