Postell v. Brunswick & W. R. Co

CourtSupreme Court of Georgia
Writing for the CourtFISH
Citation112 Ga. 602,37 S.E. 869
Decision Date25 January 1901
PartiesPOSTELL. v. BRUNSWICK & W. R. CO.

112 Ga. 602
37 S.E. 869

POSTELL.
v.
BRUNSWICK & W. R. CO.

Supreme Court of Georgia.

Jan. 25, 1901.


INJURY TO EMPLOYE—EVIDENCE OF RELATIONSHIP.

A petition alleging that the plaintiff was an employe of the defendant, and, as such, sustained personal injuries, through the defendant's negligence, while engaged in the work he was employed to do, is not sustained by evidence showing that the relation of master and servant did not exist between these parties, and that the plaintiff was really the servant of another person, and was doing the work in question under his employment by that person.

(Syllabus by the Court.)

Error from city court of Albany; Richard Hobbs, Judge.

Action by Frank Postell against the Brunswick & Western Railroad Company. Judgment for defendant. Plaintiff brings error. Affirmed.

Walters & Wallace, for plaintiff in error.

D. H. Pope & Son, for defendant in error.

FISH, J. There was no error in granting a nonsuit in this case, as the allegata and the probata did not correspond. The petition made one case, and the evidence made another. The suit was against the Brunswick & Western Railroad Company. The petition alleged that "on the 16th day of November, 1897,. your petitioner was in the employ of said defendant as switchman in the city of Albany, said state and county, his principal duty being to couple and uncouple cars in making and unmaking the trains of the defendant, and in carrying out said duties he obeyed the orders and instructions of one general yard master, who, together with your petitioner, was employed by several railroads at said point to make and unmake their trains, this defendant being one of said railroad companies so employing"; that "on said day it became his duty to couple a certain car to certain other cars then attached to a switch engine of defendant engaged in drilling its cars on a side track in said city and county"; and that, while endeavoring to discharge this duty, he was injured "by fault and negligence of defendant, " under the circumstances and as set forth in the petition, without any fault whatever upon his part. His proof showed that he was hired and paid by the Central of Georgia Railway Company, which company furnished him "as a part of the crew to do the yard work"; that the Central Company furnished a part of this crew and the defendant company furnished a part of the same, and this yard crew or force was under the control and direction of a common yard master; that the plaintiff did nothing but...

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10 practice notes
  • Mississippi Power & Light Co. v. Smith, 30745
    • United States
    • Mississippi Supreme Court
    • March 12, 1934
    ...was no relation of master and servant. 39 C. J. 34; 1 Labatt on Master & Servant (2 Ed.), pages 46, 88, sec. 27; Hostel v. Brunswick, 37 S.E. 869; B. & O., etc. v. Ball, 40 N.E. 519; Hukill v. Maysville, etc., Co., 72. F. 742; Empire Trust Co. v. Egypt Ry. Co., 182 F. 107; Kirk v. Williamso......
  • Mississippi Utilities Co. v. Smith, 30418
    • United States
    • United States State Supreme Court of Mississippi
    • February 13, 1933
    ...in question under his employment by that company. Western Wheel Works v. Stachnich, 102 Ill.App. 420; Postell v. Brunswick & W. R. Co., 112 Ga. 602, 37 S.E. 869; B. & O. R. R. Co. v. Paul, 143 Ind. 23, 28 L.R.A. 216, 40 N.E. 519; Moest v. Buffalo, 110 A.D. 657, 101 N.Y.S. 996, Aff. 193 N.Y.......
  • Graham v. Cleveland, No. 26952.
    • United States
    • United States Court of Appeals (Georgia)
    • November 23, 1938
    ...servant of such third person and make such third person hereby responsible for his negligent acts. Postell v. Brunswick & Western R. Co., 112 Ga. 602, 37 S.E. 869; Henderson v. Nolting First Mortgage Corporation, 184 Ga. 724 (3), 740, 193 S.E. 347, 114 A.L.R. 1022; Albert v. Hudson, 49 Ga.A......
  • Mathis v. Western &. A. R. R, (No. 17050.)
    • United States
    • United States Court of Appeals (Georgia)
    • July 20, 1928
    ...without showing the existence of the actual relation alleged, the plaintiff having the onus as to this issue. Posted v. Brunswick R. Co., 112 Ga. 602, 37 S. E. 869. Moreover, to hold that the evidence would authorize a finding that Mathis became a servant of the company would violate the pr......
  • Request a trial to view additional results
10 cases
  • Mississippi Power & Light Co. v. Smith, 30745
    • United States
    • Mississippi Supreme Court
    • March 12, 1934
    ...was no relation of master and servant. 39 C. J. 34; 1 Labatt on Master & Servant (2 Ed.), pages 46, 88, sec. 27; Hostel v. Brunswick, 37 S.E. 869; B. & O., etc. v. Ball, 40 N.E. 519; Hukill v. Maysville, etc., Co., 72. F. 742; Empire Trust Co. v. Egypt Ry. Co., 182 F. 107; Kirk v. Williamso......
  • Mississippi Utilities Co. v. Smith, 30418
    • United States
    • United States State Supreme Court of Mississippi
    • February 13, 1933
    ...in question under his employment by that company. Western Wheel Works v. Stachnich, 102 Ill.App. 420; Postell v. Brunswick & W. R. Co., 112 Ga. 602, 37 S.E. 869; B. & O. R. R. Co. v. Paul, 143 Ind. 23, 28 L.R.A. 216, 40 N.E. 519; Moest v. Buffalo, 110 A.D. 657, 101 N.Y.S. 996, Aff. 193 N.Y.......
  • Graham v. Cleveland, No. 26952.
    • United States
    • United States Court of Appeals (Georgia)
    • November 23, 1938
    ...servant of such third person and make such third person hereby responsible for his negligent acts. Postell v. Brunswick & Western R. Co., 112 Ga. 602, 37 S.E. 869; Henderson v. Nolting First Mortgage Corporation, 184 Ga. 724 (3), 740, 193 S.E. 347, 114 A.L.R. 1022; Albert v. Hudson, 49 Ga.A......
  • Mathis v. Western &. A. R. R, (No. 17050.)
    • United States
    • United States Court of Appeals (Georgia)
    • July 20, 1928
    ...without showing the existence of the actual relation alleged, the plaintiff having the onus as to this issue. Posted v. Brunswick R. Co., 112 Ga. 602, 37 S. E. 869. Moreover, to hold that the evidence would authorize a finding that Mathis became a servant of the company would violate the pr......
  • Request a trial to view additional results

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