Whiters v. Mallory S.S. Co.

• Decision Date: 12 November 1918
• Docket Number: 9597.
• Citation: Whiters v. Mallory S.S. Co., 97 S.E. 453, 23 Ga.App. 47 (Ga. App. 1918)
• Parties: WHITERS v. MALLORY S. S. CO.
• Court: Georgia Court of Appeals

97 S.E. 453

23 Ga.App. 47

WHITERS v. MALLORY S. S. CO.

No. 9597.

Court of Appeals of Georgia, First Division

November 12, 1918

Syllabus by the Court.

A servant is bound to obey a command, when given as such, by one occupying the relation of vice principal to the master if it pertains to the duties of the servant's employment and does not involve a violation of the law, and if the act required is not one which is of itself so obviously dangerous that no person of ordinary prudence could be expected to perform it. If, under the circumstances existing at the time of its issuance, the giving of such an order constitutes an act of negligence, but the servant, acting under the duty and obligation thus resting upon him, proceeds to execute the command, and is injured as a consequence, the master is liable in damages to the servant for the injuries so sustained. Moore v. Dublin Cotton Mills, 127 Ga 609, 616, 56 S.E. 839, 10 L.R.A. (N. S.) 772.

Whenever the vice principal of the master enters upon the discharge of duties which relate solely to the ordinary work and functions of a servant, he will be presumed to have assumed the status of a servant, and when he is thus acting in the capacity of a mere fellow servant, the master is not liable for his acts of negligence whereby another servant is injured. Studevant v. Blue Springs Lumber Co., 16 Ga.App. 668, 85 S.E. 977 (3). If, however, one who is in fact a vice principal of the master gives what ordinarily would amount to nothing more than a usual and customary work signal, but in such manner as expressly to indicate with all reasonable clearness that he is then and there assuming to speak, not in the capacity of a fellow servant, but as the representative of the master, and that with his authority he is engaged in giving a command then the mere fact that the nature and character of the order may in effect actually correspond with what would ordinarily amount to nothing more than a work signal if issued by a servant, or by one speaking merely as such, would not prevent the order thus given by the vice principal from having the full force and authority of a command.

In this case it was a question for the jury to determine whether the vice principal, if he in fact was such, in giving the order complained of was merely performing the ordinary work and duties of a servant, or whether, under the particular facts and circumstances sworn to, he was then and there assuming and purporting to act with the authority of the master, and as his representative, was giving the order as a positive command.

Error from City Court of Brunswick; D. W. Krauss, Judge.

Action by Richard Whiters against the Mallory Steamship Company. Judgment for defendant, and plaintiff brings error. Reversed.

A. D. Gale and C. B. Conyers, both of Brunswick, for plaintiff in error.

Bennet, Twitty & Reese, of Brunswick, for defendant in error.

JENKINS J.

Plaintiff was employed by the defendant as a laborer in loading its ship. Under the evidence introduced by plaintiff, it appears that the gang of which he was a member was working on the main or between deck of the ship, and had finished...