American Oil Co. v. McCluskey , 116 Ga. App. 706 ( 1967 )

Deen, Judge.

A motion to dismiss the appeal was made on grounds that: the notice of appeal filed November 17, 1966, failed to state whether the transcript of evidence was to be transmitted as part of the record; the copy of the record was not transmitted within 30 days; no court order was taken granting an extension of time; the costs were not paid until after a motion to dismiss was filed on January 31, 1967; the attempted effort to amend the notice of appeal by specifying the transcript for inclusion in the record filed February 3 is void, as well as a second amendment filed February 8, and the notice did not contain enough to amend by.

As to these objections: A. Failure to specify whether or not the transcript of evidence is to be included in the record on appeal is not one of the grounds for dismissal of the appeal listed in Code Ann. § 6-809. “No appeal shall be dismissed or its validity affected for any other cause.” In any event, nothing in the law prohibits the addition of such specification of record by amendment. Amendments to pleadings are generally allowed in the trial court. The notice of appeal when amended complied with the provisions of Code Ann. § 6-802.

B. The notice of appeal was filed November 17, 1966. The certificate of the clerk of court states that: “The transcript of evidence was filed August 25', 1966, and the delay in transmitting this transcript is due to the stress of business in this office.” Obviously, there was no delay in filing the transcript so as to bring the ruling under Davis v. Davis, 222 Ga. 579 (151 SE2d 123) or Joiner v. State, 223 Ga. 367 (155 SE2d 8). As stated in Elliott v. Leathers, 223 Ga. 497 (156 SE2d 440), the Constitution forbids dismissal of any case where the delay is attributable to the clerk of court rather than to counsel. Even where there is a delay in the filing of the transcript, if it does not delay the docketing and hearing of the case in the appellate court it is not cause for dismissal. Hornsby v. Rodriguez, 116 Ga. App. 234 (156 SE2d 830).

C. Where the record in the lower court is forwarded prior to payment of costs in that court, and the failure to pay costs has not worked a delay here, there is no ground for dismissal. City of Atlanta v. Akins, 116 Ga. App. 230 (156 SE2d 665).

None of the grounds of the motion to dismiss is meritorious.

Where the court has no jurisdiction over the subject matter of the suit, jurisdiction cannot be waived or conferred by the parties to the litigation. Ga. R. & Bkg. Co. v. Redwine, 208 Ga. 261 (1) (66 SE2d 234). An action such as this one by a parent for the homicide of a minor child under Code Ann. § 105-1307 is statutory in origin, and may be maintained only within the purview of the legislative grant. Burns v. Brickle, 106 Ga. App. 150 (126 SE2d 633). By virtue of another statute (Code § 114-103), if the plaintiff’s decedent was an employee of the defendant within the purview of the Workmen’s Compensation Act, all other rights and remedies of the plaintiff are excluded. The plaintiff in her brief concedes that the plea in bar filed by the defendant attacks the jurisdiction of the superior court over the subject matter of the action. Where the attack is successful, the only proper judgment of the court is one of dismissal. Bartram v. City of Atlanta, 71 Ga. App. 313 (1) (30 SE2d 780), and where the trial would, for lack of jurisdiction, end in a worthless judgment, the objection may be made-at any stage. Brown v. Redwyne, 16 Ga. 67, 79. The plea in bar raising this question was not filed too late. "Consent of parties, however, can not give a court jurisdiction of a subject matter when it has none by law; and when this court discovers from the record that a judgment has been rendered by a court having no jurisdiction of the subject matter and the case is brought here for review upon writ of error, this court will of its own motion reverse the judgment.” Smith v. Ferrario, 105 Ga. 51,53 (31 SE 38).

There is no merit in the insistence that the defendant did not authorize its servant to employ the deceased. This servant, Mr. Disharoon, testified that he was given general authority to hire such labor as was necessary to assist him in cleaning and removing the defendant’s property from the service station, and that he was not instructed to employ only those who had social security cards. Moreover, there was no evidence that the information of any such limitation upon Disharoon’s authority was given either to the plaintiffs, the parents of the deceased, or to the boy himself. The defendants gave Disharoon the indicia of authority to employ the deceased to do the work he was engaged in when killed. He was apparently a general agent for the purpose. In Thomas v. Case, 84 Ga. App. 564, 568 (66 SE2d 434), that term is defined: “A general agent is one who has authority to act for his principal in all matters connected with the particular matter or business, or he may be one who is given entire and general control and management of the matter or business of a particular nature.” No private limitation upon the agent’s apparent authority is binding upon third persons. Mason v. Rice, 47 Ga. App. 502 (1) (170 SE 829); Smith v. Holbrook, Glazier & Co., 99 Ga. 256 (1) (25 SE 627).

The defendant’s contention that the deceased was not an employee or invitee on the premises where he was killed because he had, at the time, completed the duties he was employed to perform is contrary to the evidence and the principle of law applicable to the relationship of master and servant. It has been uniformly held that a servant’s relationship with his master does not end the moment he finishes the task allotted to him or the period of his employment expires, but that the servant must be given reasonable time to depart his master’s premises before the relationship of master and servant ceases. U. S. Cas. Co. v. Russell, 98 Ga. App. 181 (105 SE2d 378). A servant also continues to occupy the status after he finishes his work and while he is waiting to be paid. 99 CJS 857, Workmen’s Compensation, § 241.

It is a basic rule that appellate courts in construing testimony should not lean to strained or illogical constructions but should place on it the meaning manifestly intended and adopted on the trial of the case where this is possible. Here the defendant’s employee Disharoon was called by the plaintiff for cross examination concerned entirely with the events of July 14, 1964, when plaintiff’s decedent was killed. Immediately thereafter defendant’s counsel examined him as to his obtaining a gun about a year prior to that date; his showing it to a superior about six months prior; who else had seen the gun; whether he was drinking on the morning of the mishap; when during that morning plaintiff’s decedent was employed and how long he worked; whether he had a social security card; how much of the job had been completed when the accident occurred; and whether he ever drank on the job. Here Disharoon replied that one time he and other employees worked all night putting up banners for a party at the Biltmore Hotel several years ago. He stated: “There were several of us there” (putting up the banners.) “Q. Do you know approximately how many employees the American Oil Company has? Just make a rough guess. A. If I was going to guess, I would guess about 75,000. Q. Within the State of Georgia? A. There’s over 300 in the regional office. Q. In Atlanta? A. Yes, sir.”

Referring to this testimony after the evidence had closed, counsel for the defendant stated while urging its plea in bar based on the contention that the Board of Workmen’s Compensation had exclusive jurisdiction: “The testimony by Mr. Disharoon shows that American Oil Company employed more than 10 employees and would be within the Act on it. His sole remedy at law would be a workmen’s compensation claim.” In reply counsel for the plaintiff, without taking issue with this interpretation of Disharoon’s testimony, argued: "We take the position that it is not compensable because there is no standard to measure what like laborers would earn ... his labor was so casual that he could not by any stretch of the imagination be held to be under the Workmen’s Compensation Law.” The judge’s question indicated that he, too, was assuming the defendant to be under the Act, and was interested in the legal status of the deceased as an employee.

Disharoon was a maintenance man for service stations located in a section of Georgia running from Gainesville to the Alabama and Tennessee lines. He had worked for 17 years. He had a supervisor, Stewart, who had been employed for 11 years, traveling to American Oil Company installations from place to place, and over him there was an area engineer, Brock, who had worked for 20 years. Mention was specifically made of an American Oil Company Bulk Plant at Rome, for which another man, Baker, was distributor, and a station at Dalton, where Disharoon had the pistol shortly before this incident. As to the scope of operations, American Oil Co. is a Maryland Corporation. Regarding its slogan on decals, which Disharoon was in the course of removing at a Rome, Ga., filling station, the following occurred: “Q. Is this slogan for the purpose of encouraging public confidence in your company to buy your products? A. Yes. Q. And millions of dollars are spent by your company in advertising this on television, radio, and in the newspapers to encourage the confidence of the people? A. Yes.”

This testimony, although circumstantial in part, is sufficient to establish that the defendant American Oil Company had more than 10 employees in Georgia on the date of the accident, and to demand a finding that the State Board of Workmen’s Compensation had exclusive jurisdiction in any action resulting from his death.

Judgment reversed.

Bell, P. J., Hall and Eberhardt, JJ., concur. Felton, C. J., and Jordan, P. J., concur specially in Division 4- Pannell, J., concurs specially in Division 1. Quillian and Whitman, JJ., dissent.