Rountree v. Seaboard Air-Line Railway Co. , 31 Ga. App. 231 ( 1923 )

Bell, J.

(After stating the foregoing facts.) It may or may not be that the petition alleges a cause of action (see, on this question, Decatur Lumber Co. v. Fulton, 26 Ga. App. 499 (4), 106 S. E. 609; Lawrenceville Oil Mill v. Walton, 143 Ga. 259 (1), 84 S. E. 584; Civil Code (1910), §§ 3130, 3131); and a cause of action may or may not be shown by the evidence. These questions are not involved. “A nonsuit will not be granted where the plaintiff proves his case as laid. Kelly v. Strouse, 116 Ga. 872 (4 b). This ruling does not lead to the result that it is necessary to submit the case to the jury even though it appears on the plaintiff’s evidence that he is not entitled to recover. Nor is it in conflict with the Civil Code, § 5347 [Civil Code of 1910, § 5942], since that section evidently contemplates a trial upon a petition which sets out a cause of action. Usually there is such a petition, and the plaintiff by proving his case as laid makes out a prima facie right to recover, and it would of course be improper to grant a nonsuit. If he fails to prove what he has thus alleged, or if he actually proves every fact charged, but, on cross-examination or otherwise, disproves his case by establishing beyond doubt the 'existence of other defensive facts which make it manifest that he ought not on the whole evidence to recover, then the Civil Code, § 5347 [supra], declares that ‘a nonsuit will be granted.’ ” “But where the defendant has failed to test the sufficiency of the petition by demurrer at the first term, and the petition sets out no cause of action, it does not follow that proof of the idle allegations therein will compel the court to do a useless thing, and refer to the jury' that which is so vain and nugatory that a judgment on a verdict in favor of the plaintiff would have to be arrested. Civil Code, §§ 5362, 5046 [Civil Code of 1910, §§ 5957, 5629]. In such instances, however, the vice is in the petition rather than in the proof. The remedy is not by motion to nonsuit, which is intended to test the sufficiency of the evidence, but by motion to dismiss, which is aimed at the fatal defect in the pleading. Compare O’Connor v. Brucker, 117 Ga. 451.” Evans v. Josephine Mills, 119 Ga. 448, 450 (46 S. E. 674). See also Atlanta Railway & Bower Co. v. Johnson, 120 Ga. 908 (1) (48 S. E. 389); Duke v. Bibb Mfg. Co., 120 Ga. 1074 (48 S. E. 408).

In the case of Kelly v. Strouse, 116 Ga. 872 (4 b) (43 S. E. 280), it is said that on a motion for a nonsuit “the only question is whether the evidence is sufficient in law to maintain the issue in fact made by the pleadings;” “if the evidence supports the issue made by the pleadings, it is proper to overrule a demurrer to the evidence, or a motion for a nonsuit in the nature of such demurrer, but it is not thereby adjudicated that the pleadings are in law sufficient to authorize a recovery;” “ ‘proving a case as laid5 will prevent a nonsuit.” It would seem, under this rule of practice, that where the sufficiency of a petition is not tested by demurrer or motion to dismiss, and the case is brought here merely upon exceptions to the grant of a nonsuit, all substantive law becomes ‘.inmaterial, and this court, in reviewing the judgment, is confined to a comparison of the evidence with the standards of the suit,— not of the law,—and announcing the result.

Mr. Justice Lumpkin, in Florida Coca-Cola Bottling Co. v. Ricker, 136 Ga. 411, 420 (71 S. E. 734), speaking for himself, expressed dissatisfaction with the rule of practice above referred to (see also Civil Code of 1910, § 5573), but we have found no decision of the Supreme Court which would warrant this court in declining to observe it in a case like the present, although it seems that this rule is subject to an exception in cases of ejectment (and why not also in trover?) where the property is so indefinitely described that no lawful verdict could be rendered. Williams v. Perry, 136 Ga. 453 (2 a) (71 S. E. 886). To us it seems that in no ease where the petition fails to set forth a cause of action should a nonsuit be reversed because the case was proved as laid, but that the judgment, though incorrect in point of practice, should be affirmed on the idea that the error was harmless. We have not found, however, that the Supreme Court in any case has adopted such a course.

We do not mean by the foregoing to intimate that the plaintiff has not alleged or proved a cause of action. We have intended merely to impress the fact that whether he has or not done either is a question not presented for decision under the record, and that we should determine only whether the allegata corresponds with the probata, provided the plaintiff has not disproved “his right to recover by establishing the existence of other undisputed facts which show that he is not entitled to a verdict.” It would seem, therefore, in view of the above, that any discussion of the correlative duties between master and servant would be out of place, unless pertinent under the proviso just quoted.

We have compared the allegations and the evidence, and in our opinion the plaintiff has established his case as laid, without disproving any undisputed defensive facts which would disentitle him to recover. Nevertheless, we will venture a few additional observations. The defect in the jack appears to have been one not discernible by a superficial observation, not obvious in the ordinary use of it, but was “such as would be disclosed only by a positive and careful investigation, and would not be manifest to a person of ordinary intelligence or experience in the line of work in which the servant was engaged.” International Cotton Mills v. Carroll, 22 Ga. App. 26 (1 a) (95 S. E. 472). The missing or broken teeth were not revealed in the ordinary operation of the jack, in the performance of the plaintiffs duties. He testified: “I hadn’t carried the stem up high enough for me to see the broken teeth. Afterwards I did work it up until these three broken teeth came clear up out of the top of the case and I could see them.” This was on the positive inspection which he made on the day following his injury, and which it appears required a special manipulation consuming “ten or fifteen minutes.” “The broken teeth were not at the top of the jack, were in the middle like.” It may be inferred that they were in the middle of the “case.”

“Whether the plaintiff had the same opportunity as the defendant, of knowing of the defects alleged and proved, would depend upon the character of such defects,—whether they were latent or patent. Where the defect is superficially discernible or plainly apparent to the eye, the servant has the same opportunity of seeing it and knowing of it as the master. But if the defect is latent, the master would be held bound to discover the fact sooner than the servant, because the duty of inspection rests on the master, and not on the servant. In a case of latent defects,—those which are only discoverable by proper inspection,—the master is necessarily held to a higher standard of conduct than the servant, since the master owes to the servant the duty of inspection. Hubbard v. Macon Ry. & Light Co., 5 Ga. App. 223 (62 S. E. 1018); Cedartown Cotton Co. v. Miles, 2 Ga. App. 83 (58 S. E. 289).” Cochrell v. Langley Mfg. Co., 5 Ga. App. 317 (3), 324 (63 S. E. 244).

The fact that the plaintiff discovered the defects “by a positive and careful examination” subsequently to his injury does not show that he had equal means with the defendant of knowing of the defect, for the'reason that a.failure to make such inspection prior to his injury was not a violation of any duty enjoined upon him, the defect appearing by the evidence to have been latent. See Decatur Lumber Co. v. Fulton, 26 Ga. App. 499 (1) (106 S. E. 609). The fact of the discovery of the defects in the manner shown would tend to establish the negligence of the defendant in not having discovered them itself by the discharge of its own duty of inspection, which is corroborated by the further fact, as testified to by the plaintiff, that “it was an old break, had been broken a long time, had gotten rusty where it had broken off.” The plaintiff’s evidence shows, as he alleged, that the defect was unknown to him and could not be seen from ordinary observation, and otherwise tended to support the averments of his suit. The judgment of nonsuit was therefore erroneous.

This ease is unlike that of Bolden v. Central of Georgia Railway Co., 130 Ga. 456 (60 S. E. 1047), in which the defects were obvious and discernible by superficial observation. In Morris v. Charleston & Western Carolina Railway Co., 22 Ga. App. 186 (95 S. E. 748), no general propositions of law were laid down, but the decision was confined to the particular facts of that case. Whether the ruling there made is sound or unsound, the court was ruling upon the sufficiency of a pleading, while here the only question is whether the plaintiff proved his case as laid. The present ruling does not impinge upon either of these cases.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.