Morrison v. Lewis

• Decision Date: 10 November 1938
• Docket Number: 27021.
• Citation: 199 S.E. 782,58 Ga.App. 677
• Parties: MORRISON v. LEWIS.
• Court: Georgia Court of Appeals

199 S.E. 782

58 Ga.App. 677

MORRISON v. LEWIS.

No. 27021.

Court of Appeals of Georgia, First Division

November 10, 1938

Syllabus by Editorial Staff.

Where one performs for another, with the other's knowledge, a useful service of a character that is usually charged for and the other expresses no dissent or avails himself of the service, a promise to pay the reasonable value of the service is implied, as respects determination of whether master-servant relation is created.

In action against automobile dealer for injuries received while plaintiff was riding in dealer's automobile driven by dealer's employee, petition alleging that plaintiff was riding with employee on a business trip, at employee's request, to afford protection to employee and to assist employee in case of mishap, showed that the injuries resulted from the acts of plaintiff's fellow-servant, and hence stated no cause of action. Code 1933, § 66-304.

Where petition set forth no cause of action, dismissing the petition on oral motion in nature of a general demurrer was not error.

Error from Superior Court, Chatham County; John Rourke, Jr., Judge.

Suit by S. A. Morrison against J. C. Lewis, trading and doing business as the J. C. Lewis Motor Company, for injuries suffered in automobile accident. To review an order sustaining motion to dismiss the petition, plaintiff brings error.

Affirmed.

Joe A Long and F. P. McIntire, both of Savannah, for plaintiff in error.

Hester & Clarke, of Savannah, for defendant in error.

Syllabus OPINION.

MacINTYRE Judge.

1. Code, § 66-304, declares: "Except in case of railroad companies, the master shall not be liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business." See Brush Electric Light & Power Co. v. Wells, 110 Ga. 192, 35 S.E. 365.

2. "Where one performs for another, with the other's knowledge, a useful service of a character that is usually charged for, and the latter expresses no dissent or avails himself of the service, a promise to pay the reasonable value of the service is implied." Mitcham v. Singleton, 50 Ga.App. 457, 178 S.E. 465, 466; Douglas v. Stephens, 27 Ga.App. 485, 487, 108 S.E. 833; 6 R.C.L. 587.

3. Under the foregoing principles, the petition in the instant case, construed most strongly against the petitioner, shows the personal injuries complained of to be the result of the acts of a fellow servant of ...