Clance v. Melton , 62 Ga. App. 628 ( 1940 )

Since the petition shows on its face that the negligence of the alter ego of the master, acting as a fellow servant, and not as master, was the sole proximate cause of the injury to the fellow servant, the court properly dismissed the action on motion of the defendant.

DECIDED MAY 24, 1940. W. O. Clance filed suit against A. W. Melton Sr., alleging, that on a certain date he was employed by the defendant to drive a truck hauling clay, and to perform such other work as the defendant might order him to do; that Lawson Bostwick was at the time the general foreman of the defendant, and as such had general supervision, direction, and control of the work to be performed by petitioner, and had authority to hire and discharge defendant's employees; that the truck petitioner was employed to drive "broke down," and Bostwick ordered plaintiff to assist him in repairing it at the home of Bostwick, to which place the truck was carried; that Bostwick placed a jack on the right rear side of the truck, raised the right wheel off the ground, placed a wooden block under the right side, rested the truck on the block, and jacked up the left rear side, so that both rear wheels cleared the ground; that the drive shaft had been so loosened that the rear wheels could be moved backward from under the truck for the purpose of repairing the drive shaft; that thereupon Bostwick ordered petitioner to go to the right side of the truck and push the rear wheels backward, so as to remove the drive shaft; that pursuant to said order petitioner went on the right side and pushed the wheel on the right side back ten or twelve inches, and then Bostwick undertook to push the rear wheel on the left side, and in doing so he pushed the truck over to the right side so that it fell off the wood block and jack upon petitioner's leg, crushing it at and near the ankle; that when the truck started to fall, petitioner tried to get away and avoid the injury, but he was standing between a pile of wood, near the right side of the truck, and the truck fell so quickly that it was impossible for him to avoid being struck; that the defendant was negligent (a) in ordering petitioner to go on the right side of the truck and move the right wheel, when Bostwick knew he intended to push against the truck while petitioner was on the right side; (b) in Bostwick's pushing the left rear wheel from under the truck and pushing it off the blocks over and against petitioner. The defendant's motion to dismiss the action was sustained, and the plaintiff excepted. This case is so clearly governed by the principle laid down in Haynie v. Foremost Dairies Inc., 54 Ga. App. 369 (187 S.E. 907), that it seems idle to elaborate it to any great extent. The case is the same as if the superintendent, Bostwick, had ordered another fellow servant of the plaintiff to go to the other side of the truck from the plaintiff and push the wheel from under the truck. In such a case the master would clearly not be liable, because the injury would have been attributable to the negligence of the fellow servant. The petition does not allege that the alter ego of the defendant gave the order, knowing that the fellow servant would be negligent. If it had so alleged, the case might present a different question. The only liability claimed in this case is the negligence of Bostwick acting in the capacity of a fellow servant, with nothing to connect his negligence as a fellow servant with any negligence of his while acting as master. The order given was not a negligent order, under the allegations of the petition. This is not a case where the master gave the order knowing that it would be accompanied by the negligence of a fellow employee or by himself either as master or fellow employee; and this is not a case involving the employment of an incompetent fellow servant or the retention of such a servant after notice of incompetency. We do not think the presence of the pile of wood is material, because the only thing which would have made the situation dangerous was the possibility of the negligence of one pushing the truck from the other side. The plaintiff was engaged in exactly the same undertaking, and should have been as mindful of his own danger as he was or should have been of the danger to the workman on the other side who might have been injured if he had been guilty of like negligence. So the mere presence of the wood would not render the order dangerous. None of the decisions cited for the plaintiff, to wit,Moore v. Dublin Cotton Mills, 127 Ga. 609 (56 S.E. 839, 10 L.R.A. (N.S.) 772), McDonald v. Eagle PhenixManufacturing Co., 68 Ga. 839, Buckeye Cotton-Oil Co. v.Everett, 24 Ga. App. 738 (102 S.E. 167), Babcock LumberCo. v. Johnson, 120 Ga. 1030 (48 S.E. 438), Haynie v.Foremost Dairies Inc., supra, and Blackman v.Thompson-Houston Electric Co., 102 Ga. 64 (29 S.E. 120), holds to the contrary of what is herein held. The court did not err in dismissing the action.

Judgment affirmed. Stephens, P. J., and Sutton, J., concur.