Payne v. Rivers

• Decision Date: 15 December 1921
• Docket Number: 12726.
• Citation: 110 S.E. 45,28 Ga.App. 28
• Parties: PAYNE, AGENT, v. RIVERS.
• Court: Georgia Court of Appeals

110 S.E. 45

28 Ga.App. 28

PAYNE, AGENT, v. RIVERS.

No. 12726.

Court of Appeals of Georgia, First Division

December 15, 1921

Syllabus by the Court.

The first six grounds of the amendment to the motion for a new trial, complaining of the admission of certain evidence over the objections of the defendant, show no material error.

The following excerpt from the charge is complained of "Under the law, when the defendant filed the amendment striking these paragraphs, he was not longer bound by them as admissions in court, solemn admissions, conclusive upon him and it became his right to offer any explanation of these paragraphs that he desired. While they are admissible in evidence, and put in evidence, tendered in evidence by the plaintiff, and admitted, the defendant is not concluded by what is stated in these paragraphs; but you would consider them, under the law and rules of evidence as to admissions and the law declares that it is the duty of the jury to scan admissions with care; that is, to determine just what sort of admission was made, if any, the circumstances under which it was made, the facts with reference to it, as disclosed by all the evidence in the case, and then, scanning such admissions with care, having done so, and considering all the evidence in the case referring to such admissions or in connection with them, then the jury would give them just such weight as the jury believes they are entitled to, remembering that the defendant is not concluded, not prohibited from explaining or denying them, and then give the admissions, if made, just such weight as you think they are entitled to." This excerpt was not error for any reason assigned. See, in this connection, Mims v. Jones, 135 Ga. 541, 544, 69 S.E 824, and citations.

Where a person is employed and paid by a servant as a temporary substitute, with the express or implied knowledge of the master, or with a subsequent ratification by the latter, the person employed is entitled to the same protection against injury while engaged in the master's work as the regular servant for whom he is substituting, even though he may not be entitled to recover wages from the master. Aga v. Harbach, 127 Iowa 144, 102 N.W. 833, 109 Am.St.Rep. 377, 4 Ann.Cas. 441; Haluptzok v. Great Northern R. Co., 55 Minn. 446, 56 N.W. 144, 26 L.R.A. 739; Illinois Cent. R. Co. v. Timmons (Ky.) 100 S.W. 337; Yazoo & M. V. R. Co. v. Slaughter, 92 Miss. 289, 45 So. 873; Garretson-Greeson Lumber Co. v. Goza, 116 Ark. 277, 172 S.W. 825(6); Kali Inla Coal Co. v. Ghinelli, 55 Okl. 289, 155 P. 606(7); Chicago, R.I. & P. Ry. Co. v. Box, 99 Ark. 108(1), 137 S.W. 566. See, also, in this connection, Cooper v. Lowery, 4 Ga.App. 120, 121, 60 S.E. 1015, citing the Haluptzok Case, supra.

(a) Under the above ruling and the particular facts of the case and in view of the charge as a whole, the court did not err in charging, as complained of in the twelfth to the twenty-fifth special grounds (inclusive) of the motion for a new trial, upon the question as to whether or not the plaintiff was an employee of the defendant company or a mere volunteer. Nor were any of...