Blanchard v. Gallahar , 72 Ga. App. 132 ( 1945 )

The petition failed to set out a cause of action against the defendant, and the court erred in overruling his general demurrer.

DECIDED MARCH 1, 1945. The petition of Mrs. C. G. Gallahar alleged that S. A. Blanchard, on November 28, 1942, was the proprietor of the S. A. Blanchard Funeral Home at Thomson, McDuffie County, Georgia, and that Gordon Dunn was the vice-manager and operator of said funeral home; that C. G. Gallahar, her husband, was an employee of said home; that on November 28, 1942, on a call from said home, he went there and got into the funeral home's ambulance with Dunn and went to the home of Claude May, where they put May in the ambulance and started to carry him to a hospital at Washington, Georgia; Dunn was driving the ambulance and Gallahar was sitting with May in the back of the ambulance, a partition being between them and Dunn; while proceeding on the highway in Thomson, Dunn started to drive across State Highway No. 12, at a reckless and wanton rate of speed of approximately 60 miles per hour, when a truck, traveling at about 15 miles per hour on said highway, and which had gotten more than halfway across the intersection, was struck by the ambulance, and Gallahar was instantly killed; that the ambulance was being operated in a reckless manner because it was being driven at a speed in violation of the law of Georgia, and in violation of the speed ordinance of the City of Thomson, across a public street, highway, or intersection, where there was much travel day and night, without regard to the travel and in disregard of human life and the property rights of the traveling public, and was being so operated by said Dunn while he was under the influence of intoxicating liquors; that said Dunn either saw the truck in the intersection (of the highways), or could have seen it in the exercise of ordinary care by looking at the intersection; that the truck came slowly into the intersection, in the night time, with lights on it, and was under a street light in the intersection, and there was nothing to obstruct Dunn's view; that Gallahar was in the rear of the ambulance, and the partition between him and Dunn made it impossible for Gallahar to see the road in front of the ambulance, or to take any part in its operation; that Gallahar had no control over Dunn at any time in the management of the business (of the funeral home), or in the operation of the ambulance, but Dunn was acting manager of said Blanchard, and Gallahar was at all times under the orders of Dunn, and was under such orders at the time of his death, and therefore was acting under the orders of Blanchard by and through Dunn; That Gallahar was killed as the direct cause of the wilful and wanton negligence of Blanchard and his agent and employee, Dunn. The petition specified the acts of negligence as follows: (a) the ambulance at the time of the collision was being operated by Blanchard through Dunn at an excessive rate of speed at about 60 miles per hour, while attempting to cross highway No. 12; (b) the ambulance did not reduce its speed on approaching the intersecting highway, but continued its said rate of speed, in violation of section 68-303 of the Code, and therefore Blanchard and Dunn were guilty of negligence per se; (c) the ambulance at the time of the collision was being operated in violation of an ordinance of the City of Thomson which provides that motor vehicles shall not be operated in the city at a speed greater than 20 miles an hour, and Blanchard and Dunn, therefore, were guilty of negligence per se; (d) Blanchard and Dunn were negligent in not seeing the truck in the intersection before they attempted to cross; (e) Blanchard and Dunn were negligent in not having the ambulance under such control that it could have been stopped before colliding with the truck; (f) (This paragraph was stricken by amendment); (g) both defendants were negligent in operating the ambulance at such a reckless rate of speed as endangered, not only the lives of the traveling public, but the lives of those in the ambulance, including that of the patient therein. A certified copy of the city ordinance referred to in the petition was attached as an exhibit to the petition. The two defendants were sued jointly, but each filed a separate demurrer to the petition; and, when the demurrers were overruled, each filed a separate bill of exceptions to that judgment. One ground of Blanchard's general demurrer alleged that the petition failed to set forth a cause of action against him, because the petition shows that Gordon Dunn and the plaintiff's husband were co-employees and fellow servants of the defendant, and that if her husband's death were caused by any negligence, it was the negligence of Gordon Dunn, her husband's fellow servant, for which the defendant is not liable. It is well-settled law that if Dunn and the plaintiff's husband were fellow servants, their master (Blanchard) would not be liable for the death of her husband, if it were caused by the negligence of Dunn. "Except in case of railroad companies, the master shall not be liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business." Code, § 66-304. In this case the petition clearly shows that the death of Gallahar was the result of Dunn's negligence. Therefore, the only question here presented is whether the petition, properly construed (most strongly against the plaintiff), shows that Gallahar and Dunn were fellow servants within the meaning of the above-cited Code section. In Hamby v. Union Paper Mills, 110 Ga. 1 (35 S.E. 297), headnote 1 reads: "Two persons subject to control and direction by the same general master in the same common object are fellow servants, and if one is injured by the negligence of the other, the master, save when by statute otherwise provided, is not liable, although the negligent servant has the right todirect the work of the other." (Italics ours.) In Salter v.Nugent, 50 Ga. App. 187 (3) (177 S.E. 513), this court said: "The original petition, . . properly construed (most strongly against the plaintiff), shows that the personal injuries sued for resulted from the negligence of a fellow servant of the plaintiff. While the petition contains some language tending to show otherwise, such language is clearly a conclusion of the pleader which is not supported by the facts set forth." InMoore v. Dublin Cotton Mills, 127 Ga. 609, 624 (56 S.E. 839, 10 L.R.A. (N.S.) 772), the court said: "In the present case there was evidence that N. S. West was superintendent over the hands of the Dublin Cotton Mills and that he was the overseer. This alone was not sufficient to show that he was the vice-principal. The evidence showed further that he had charge of the work and the hands, and that the plaintiff was working under his orders. . . Before the servant would take rank as a vice-principal of the master, it must appear that he is vested with authority to give those orders which the servant of a master is entitled to regard as coming from the master himself. Orders in reference to mere matters of trivial detail amounting merely to supervision in the operation of the business may be properly entrusted to a servant, if the master has been free from negligence in the employment of the servant to whom he entrusts this duty; that is, many orders in the operation of a business are part of the mere supervision of the work."

In the instant case there was no allegation in the amended petition that the master had been negligent in employing his servant Dunn. Under the foregoing rulings, and the allegations and facts set forth in the petition, and properly construing the petition (most strongly against the plaintiff), we think that it appeared from the petition itself that Dunn and Gallahar were fellow servants, and that Blanchard was not liable for the death of Gallahar; and that the court erred in overruling Blanchard's general demurrer to the petition.

Judgment reversed. MacIntyre and Gardner, JJ., concur.