Oliver v. Macon Hardware Co

• Citation: 25 S.E. 403,98 Ga. 249
• Parties: OLIVER. v. MACON HARDWARE CO. et al.
• Decision Date: 23 March 1896
• Court: Georgia Supreme Court

98 Ga. 249

25 S.E. 403

OLIVER.

v.MACON HARDWARE CO. et al.

Supreme Court of Georgia.

March 23, 1896.

Laborer's Lien—Clerk in Mercantile Establishment.

1. Primarily, a clerk in a mercantile establishment is not a "laborer, " in the sense inwhich that word is used in section 1974 of the Code, even though the proper discharge of his duties may include the performance of some amount of manual labor. If the contract of employment contemplated that the clerk's services were to consist mainly of work requiring mental skill or business capacity, and involving the exercise of his intellectual faculties, rather than work the doing of which properly would depend upon mere physical power to perform ordinary manual labor, he would not be a laborer. If, on the other hand, the work which the contract required the clerk to do was, in the main, to be the performance of such labor as that last above indicated, he would be a laborer. In any given case, the question whether or not a clerk is entitled, as a laborer, to enforce a summary lien against the property of his employer, must be determined with reference to its own particular facts and circumstances.

2. Although the intervention filed in the present case alleged in general terms that the intervener was a clerk, that the amount he claimed was due him for services and labor performed as a clerk, and that as such clerk he performed manual labor, yet, as it failed by other appropriate allegations to show to which of the classes above indicated he belonged, it was bad for uncertainty, and properly dismissed on demurrer.

(Syllabus by the Court.)

Error from superior court, Bibb county; John L. Hardeman, Judge.

Intervention of Henry E. Oliver in the matter of a judgment against the Macon Hardware Company. Judgment against the intervener, and he appeals. Affirmed.

Alex Proudflt, for plaintiff in error.

Dessau & Hodges, for defendant in error.

LUMPKIN, J. Some confusion has arisen in the decisions of this court with reference to the question whether or not a clerk employed in a store, office, or other place of business, is a "laborer, " within the meaning of sections 1974 and 3554 of the Code; the former giving laborers a general lien for their labor upon the property of their employers, and the latter exempting the wages of laborers from the process of garnishment In Butler v. Clark, 46 Ga. 466, the question arose as to whether the wages of one employed in a mill as "receiving and shipping clerk, " and who "performed any other duties required of him" by his employer, were subject to garnishment In dealing with the case, this employs was treated as "a hired workman, " and accordingly adjudged to be a laborer, within the meaning of the statute. In Claghorn v. Saussy, 51 Ga. 576, the monthly wages of a "forwarding clerk" in the employment of a railway company were held not to be subject to the process of garnishment. It was the duty of that clerk to attend dady to the forwarding of goods, and to render other services which necessarily required the performance of a considerable amount of manual labor. The case is cited in Oliver v. Boehm, 63 Ga. 172, where it was decided that a person "employed as clerk, bartender, and boy of all work, to labor in and about a retail grocery and liquor store, " was a laborer entitled to the lien pro vided for by section 1974 of the Code. The scope of this boy's employment seems to indicate that the greater part of his work consisted of manual labor, rather than of services requiring mental or intellectual skill and capacity. Indeed, in Richardson v. Langston, 68 Ga. 658, Justice Crawford, in referring to Oliver's Case, said "he specifically set out at length the actual manual labor which he performed." The learned justice doubtless referred to the record of the case, as only the headnote of the decision is reported in 63 Ga. In Richardson's Case the court ruled that an affidavit to foreclose a laborer's lien, in which it was alleged that the defendants, merchants selling dry goods and groceries, were indebted to the deponent "for services rendered as clerk, laborer, and general service in said store, " was not demurrable as not sufficiently setting out the fact that the plaintiff was a laborer. The opinion was written by Justice Crawford, who dissented from the judgment. We make the following extract from his comments on the case: "I do not understand that clerks, or persons doing general service, although they may labor, are therefore laborers, in...