Georgia Railway & Power Co. v. J. M. High Co. , 1914 Ga. App. LEXIS 69 ( 1914 )

Russell, 0. J.

(After stating the foregoing facts.) As will be seen from the statement of facts, the petition for certiorari now before us came up in turn before each of three judges of the superior court of the Atlanta circuit. On September 15, 1913, in response to an order requiring the magistrate to file an answer to the certiorari, he filed an answer which adopted, as his answer to this petition, the answer made by him in response to the writ issued on a previous petition for certiorari in the same case, the former petition being practically identical with the pending petition. The judge passed an order allowing this answer. This order can not be treated otherwise than as an adjudication by the superior court that the answer was sufficient, although its sufficiency depended largely .upon the previous answer. Consequently, even if it be assumed that the court erred in allowing the answer to the former petition for certiorari to be adopted by mere reference to the files, in verification of the allegations of the pending petition, no exception to this was filed, and the question became res adjudicata, and thus the law. of the case became fixed, whether the ruling on this point was correct or not. However, in Harlow v. Rosser, 28 Ga. 219 (perhaps the oldest adjudication on the subject), the Supreme Court held: “The allegations of the petition for certiorari were sufficiently verified by an answer which referred to and adopted the answer of the magistrate to a former petition for certiorari between the same parties, complaining of the same rulings, and containing statements practically identical with those of the pending petition, the superior court having granted an order allowing this irregular answer, there being no exception to that order.”

Looking then to the allegations of the petition for certiorari, as verified by the answer thus adopted, it is. only necessary to refer to one of the issues presented, because we deem the ruling upon this point absolutely controlling. The plaintiff traversed the garnishee’s answer that it was not indebted to the defendant. The basis upon which the answer to the garnishment rested was the allegation that the defendant was a laborer, and that for this reason his wages were exempt from garnishment. Evidence on this point was heard in the justice’s court; and it is plain, from the undisputed evidence, that by far the major portion of the defendant’s duties were physical in their nature. There were, perhaps, a few days in the month upon which, in examining or reading meters, the mental labor might be said to have preponderated over the manual, in the classification of the labor performed by him. The magistrate separated the days in which the defendant labored in repair work from the days when he was employed in reading meters, and held that in the proportion in which the defendant’s service was represented by the days on which he read the meters, his wages were subject to garnishment; thus sustaining the traverse to that extent. As has been frequently held, in determining whether an employee is such a laborer as that his monthly wages are exempt from garnishment, the court should ascertain whether, in the performance of his duties, mental labor or physical labor predominates; and this inquiry is addressed to his services as a whole, in view of the purpose of his employment, and with relation to his employment as a whole, without regard to any division or separation as to time. See Oliver v. Macon Hardware Co., 98 Ga. 249 (25 S. E. 403, 58 Am. St. R. 300); Howell v. Atkinson, 3 Ga. App. 58 (59 S. E. 316). For instance, if a clerk in a store, in handing out goods, helping to load delivery wagons, or packing and unpacking goods, should be employed for a portion of the day in some strictly mental task, it is not contemplated that the day shall be divided and the proportion between the period of time employed in physical labor and that period during which mental duties predominates shall be reached; but if it appears that the greater portion of his time is employed in manual labor, the nature of his employment would be determined by the character of the major portion of his duties, without any apportionment of the time required for the dis-* charge of.the different and distinct duties. Pike v. Sutton, 115 Ga. 688 (42 S. E. 58). In other words, the solution of the question as to whether the mental or the physical predominates should be determined, as a matter of fact, by relation to the entire contract. The magistrate in the present case divided the contract with reference to the particular duties performed on different days, whereas the rule of law requires that the contract as a whole shall be classified according to whether mental or purely physical labor predominates.

According to the facts shown by the answer allowed by the court, without timely exception, as the answer to the certiorari, the defendant’s wages were not subject to garnishment, and for that reason the trial judge erred in overruling the certiorari. The judgment is reversed with direction that the superior court enter a final judgment in favor of the plaintiff in certiorari.

Judgment reversed, with direction.

Roan, J., absent.