Opinion
36766.
DECIDED JUNE 21, 1957.
Tort; fall from building. Before Judge McWhorter. Chatham Superior Court. March 29, 1957.
William F. Braziel, Harry P. Anestos, for plaintiff in error.
John J. Sullivan, James W. Head, contra.
Where a defendant performs an act under the command of his master and with assurances from the master that the act may be performed with safety and is injured thereby, it is a question of fact for the jury whether or not the master was negligent in giving the command and whether or not the servant was negligent in obeying the command under such circumstances.
DECIDED JUNE 21, 1957.
On February 7, 1956, Bervin A. Clifton brought an action for damages against Andrew P. Pappadea. The material allegations of his petition are substantially these. The defendant owns a three-story building with a brick parapet on the front which is approximately four feet in height and which rises from the roof for ornamental purposes only. During the month of February, 1954, the defendant employed the plaintiff to paint and stucco the entire front of the building, including the parapet, and to do certain other work inside. It was agreed that the defendant would supply all materials, equipment and tools. He was to retain the right to hire and fire any help that the plaintiff might want. He was to fix the salaries and to control the work as it progressed. It was understood between the plaintiff and the defendant that the plaintiff was to be a workman for the defendant and under his complete control, power and supervision. In determining the amount of the compensation which the plaintiff was to receive, it was agreed that the plaintiff was to be paid a flat hourly rate. The plaintiff, under the agreement, was permitted to employ one man whose employment was approved by the defendant, and it was agreed that this man was to receive one-half as much for his labor as the plaintiff received. The work was commenced several days prior to February 9, 1954, and during this time the defendant was at the job continuously from the time the plaintiff and his helper started to work until they departed. He directed the nature of the work to be done, the color of the stucco and paint to be used, directed what particular work was to be done, the manner in which it was to be done, and was in control of the activities and labor of the plaintiff and his helper during the entire period the work was being done. The defendant furnished a ladder, buckets, paint brushes, and all of the materials necessary except that the defendant did not give the plaintiff any lumber or piping for building a scaffold. Although the building is 36 feet in height from the ground to the top of the parapet, the defendant only furnished the plaintiff and his helper with a 32 to 34-foot extension ladder which did not reach to the top of the parapet. The plaintiff called this fact to the defendant's attention and the plaintiff and his helper both suggested that a scaffold should be built and securely anchored to the parapet or to the roof in order to minimize the possibility of any danger to the plaintiff and his helper in painting the front of the building. The defendant refused to furnish the pipes or lumber necessary for such a scaffold and assured both the plaintiff and his helper that the parapet was solid and secure, that the bricks were strong enough to hold up a person many times as heavy as the plaintiff, and that there was no danger whatever to the plaintiff, and that there was no danger whatever to the plaintiff when he reached the top of the parapet if he clutched the parapet to draw himself up over the parapet onto the roof. The defendant told the plaintiff that he had had such work done many times on the building in this manner, that no one had ever been hurt, and there was no possibility of anyone's being hurt. From a casual inspection of the parapet, the plaintiff was unable to detect any danger in the parapet and as he was not familiar with the age of the building or the type of construction, or that the defendant was not telling him the truth, the plaintiff permitted himself to be lulled into a position of false security and accepted the representations and statements of the defendant that he was being furnished a safe place in which to work and that the tools were reasonably safe for the particular job which he was to perform. On February 9, 1954, the plaintiff was working on the front of the building when it became necessary for him to climb onto the ladder and to go over the parapet onto the roof. As he "grabbed" the top row of the brick of the parapet to climb onto the roof of the building, the brick gave way and he fell backwards to the concrete 36 feet below which caused him to suffer enumerated injuries and damages in the alleged amount of $25,000. The plaintiff alleges that at the time of his injuries, he was in the exercise of ordinary care and diligence, was free from negligence and did not in any way contribute to the injuries which he sustained, but these injuries were due to the carelessness and negligence on the part of the defendant in the following additional respects: (a) In failing to furnish the plaintiff with a safe place in which to work; (b) in failing to furnish the plaintiff with the necessary safe tools with which to work, which is to say that the defendant did not furnish the plaintiff with a ladder sufficiently long to reach the top of the roof, and failed to supply him with the necessary staging and scaffolding to prevent the fall which he sustained; (c) in misleading the plaintiff by his representations as to the strength of the parapet, that the scaffolding was unnecessary, and in leading the plaintiff to feel secure due to these false representations.
On June 8, 1956, the Honorable Dunbar Harrison, Judge of the Superior Court of Chatham County, overruled the defendant's general demurrer and overruled and sustained certain of his special demurrers, and allowed the plaintiff 10 days within which to amend.
By amendment the plaintiff alleged that the contract of employment was oral and not in writing; that the workmen were to commence work at 8 a. m., with time off for dinner and were to stop work at 5 p. m.; that the refusal to furnish the scaffolding was made at the commencement of the job, but the plaintiff continued to work because of the assurance given him by the defendant; that when the work had progressed to the point where it became necessary to paint and stucco the top of the building near the parapet, the plaintiff, in order to do a more satisfactory job, went up the ladder as far as possible and then took hold of the parapet for the purpose of pulling himself up over the parapet onto the roof, and it was at this point that the brick gave way and the plaintiff sustained his fall.
On July 3, 1956, the defendant renewed his general demurrer to the petition as amended.
On March 11, 1957, the Honorable Edwin A. McWhorter, Judge of the Superior Court of Chatham County, entered an order overruling the general demurrer to the petition as amended.
On March 27, 1957, Judge McWhorter allowed the order on the demurrer to be reopened for further argument and citation of authority, and on March 29, 1957, Judge McWhorter entered the following order:
"The original and special demurrers to plaintiff's petition in this cause were passed upon by the Honorable Dunbar Harrison, Judge of this court, on the 8th day of June, 1956. The general demurrer was overruled. Certain special demurrers were sustained and certain others overruled. The plaintiff was given ten days within which to amend to meet the demurrers which were sustained. The amendment was filed on the 19th day of June, 1956, and the defendant renewed his general demurrer only, which was an admission by the defendant that the amendment met the ruling on the special demurrers. However, rather than rely on the admission, the court now holds that the amendment did meet the ruling on the special demurrer.
"The renewed general demurrer came on for a hearing before the signer of this opinion, and the court overruled it as to the petition as amended on March 11, 1957.
"Thereafter, on motion of Harry P. Anestos, one of the attorneys for the defendant, who was unavoidably away from court on the day the demurrer was heard, the matter was reopened and he was allowed to argue the demurrer on the 27th day of March, 1957.
"In the court's opinion the amendment to plaintiff's petition was not sufficient to open the case for the renewal of the general demurrer as passed upon by Judge Harrison on June 8, 1956, and that order fixed the law of the case as to all matters that might be argued on general demurrer; and that the order of this court in again sustaining the general demurrer was surplusage. Therefore, there is nothing for the court to rule upon in this case.
"If either of the three judges of this court took the position, when another judge had ruled in the case, that he could reverse that judge when the matter subsequently came before him; much legal confusion would be introduced into the trial of cases in this court, and neither litigants nor counsel would have any definite assurance of terminating litigation or of determining the point from which an appeal could be taken to the appellate courts. Therefore, the court refuses at this late date to overrule the opinion and order of an associate judge of this court.
"By way of dictum obiter, the writer of this opinion might remark that the cases cited by the industrious counsel for the defendant and presented to this court can be distinguished from the facts as alleged in the case at bar. This case is rather controlled by the following principle of law stated in the case of Central of Georgia Railway Co. v. Lindsey, 28 Ga. App. 198 (1b). It is well settled, of course, that where the master gives to the servant an order, with an express or plainly implied assurance of safety in compliance therewith, such order and assurance, when acted upon by the servant, will operate to establish a quasi new agreement whereby the servant is relieved of his former assumption of risk.
"In this case the plaintiff, as servant of defendant, was acting upon his assurance of safety with reference to the strength of the parapet, and at the time of his injury was either directly or impliedly under his orders because the petition shows that the defendant was constantly present directing and supervising the work."
In the bill of exceptions the sole assignment of error is on the judgment of the court dated March 29, 1957.
It is a well recognized rule that if a judgment is right for any reason it should be affirmed. Barksdale v. Security Investment Co., 120 Ga. 388 (4) ( 47 S.E. 943); Huggins v. Southeastern Lime c. Co., 121 Ga. 311 (1) ( 48 S.E. 933); Berry v. Robinson Overton, 122 Ga. 575 (2) ( 50 S.E. 378); Johnson v. Boyd, 202 Ga. 531 ( 43 S.E.2d 524).
"`Where, in ruling upon demurrers, the trial court allows time for the filing of an amendment such court shall render a judgment on the sufficiency of the pleadings after the expiration of the time allowed for amendment which shall supersede the earlier judgment on the demurrers, and such earlier judgment or judgments shall not be subject to exception or review.' Weinstein v. Rothberg, 87 Ga. App. 109 ( 76 S.E.2d 106); Sellers v. City of Summerville, 88 Ga. App. 109 ( 76 S.E.2d 99); Aiken v. State Farm Mutual c. Ins. Co., 88 Ga. App. 131 ( 76 S.E.2d 141); Godwin v. Hudson, 93 Ga. App. 858 ( 93 S.E.2d 379)." Butler v. Jackson, 94 Ga. App. 632 ( 95 S.E.2d 761).
"A servant is bound to exercise ordinary care and skill in protecting himself from danger (Civil Code of 1910, § 3131); and this is true whether he be acting on his own initiative or under the direct command of his master. `If the order was negligent and the servant knew of the peril of complying with it, or if he had equal means with his master of knowing of the peril, or by the exercise of ordinary care might have known thereof, then he can not recover for an injury received in complying with the order.' Southern Ry. Co. v. Taylor, 137 Ga. 704 (1 a) ( 73 S.E. 1055); Hightower v. Southern Ry. Co., 146 Ga. 279 (2), 281 ( 91 S.E. 52, L.R.A. 1917C, 481). But while it is thus true that the standard of diligence to which the servant is amenable, and under which he is ever required to exercise ordinary care, remains invariable ( Central R. Co. v. Ryles, 84 Ga. 420 (1), 11 S.E. 499; Harris v. Central R., 78 Ga. 525, 526 (6), 536, 3 S.E. 355; Central of Ga. Ry. Co. v. Hartley, 25 Ga. App. 110, 112 (6), 103 S.E. 259), and he is not excused for actual negligence by reason of the fact that the injury results from his obedience to such a direct and specific command, when it appears that he failed to exercise ordinary care, or that the risk was obvious, or that he knew or had equal means with the master of knowing of the unusual peril involved in a compliance with the command, it is nevertheless true that what in any given case amounts to `ordinary care' is to be determined by the jury in the light of all the surrounding facts and circumstances existing at the time of the injury, including the issuance of the command by the master to the servant. Henderson v. Hines, 26 Ga. App. 334 (2) ( 106 S.E. 197); Labatt on Master Servant (2d ed.), 3929 et seq.; 18 R. C. L. 655. Thus, except in cases where the unusual and unnecessary danger involved in a compliance with a direct and specific command of the master is plainly apparent, or where the servant has actual knowledge of such danger, the fact that the servant was injured while acting in compliance with such a command can properly be shown as a circumstance throwing light upon the ultimate question respecting his diligence and as tending to excuse his conduct, which might otherwise be adjudged as evincing a lack of ordinary care. Especially is this true where the master's command is accompanied by an assurance of safety to the servant. This is true for the reason that the servant does not always have, nor in all cases could he be presumed to have, `equal means with the master of knowing of the peril' ( Southern Ry. Co. v. Taylor, supra); for while it is true that a servant is presumed to know of the existence of the ordinary natural laws of universal application ( Williams v. Atlantic Coast Line R. Co., 18 Ga. App. 117), still what is commonly referred to as the `doctrine of skill' frequently makes the knowledge implied against the master with reference to the conduct of his business superior to that implied against the servant ( Beard v. Georgian Mfg. Co., 8 Ga. App. 618 (2), 70 S.E. 57; Burton v. Wadley Southern Ry. Co., 25 Ga. App. 599, 603, 604, 103 S.E. 881; Decatur Lumber Co. v. Fulton, 26 Ga. App. 499 (3), 106 S.E. 609), and since, `as a general rule, a servant is under no obligation to inspect the appliances about which he works or that part of the plant by which his safety may be affected, for the purpose of discovering concealed dangers which would not be disclosed by superficial observation' ( Southern Cotton Oil Co. v. Dukes, 121 Ga. 787 (2), 49 S.E. 788; Decatur Lumber Co. v. Fulton, supra); and finally for the reason that it is ordinarily true that `a servant is bound to obey the order of his master unless the command includes a violation of the law, or the act required is so obviously dangerous that no person of ordinary prudence would undertake to perform it' ( Moore v. Dublin Cotton Mills, [ 127 Ga. 609, 56 S.E. 839, 10 L.R.A. (NS) 772], supra), and it is one of the absolute, continuous, and non-assignable duties of the master to refrain from giving negligent orders. Columbus Mfg. Co. v. Gray, 9 Ga. App. 738 (2) ( 72 S.E. 273); Cherokee Brick Co. v. Hampton, 16 Ga. App. 53, 54 (5) 63 ( 84 S.E. 328); International Cotton Mills v. Webb, 22 Ga. App. 309 (2) ( 96 S.E. 16)." Central of Ga. Ry. Co. v. Lindsey, 28 Ga. App. 198 (2) ( 110 S.E. 636).
Under an application of the foregoing rules, the trial court in the order to which exception is taken, in effect overruled the general demurrer to the petition as finally amended, and properly held that the petition stated a cause of action under the ruling in the Lindsey case, supra. The first order upon the general and special demurrers in which time was allowed for amendment is not, of course, reviewable. The next order overruling the general demurrer was proper, as following the amendment it was incumbent under Code (Ann.) § 81-1001, upon the trial court to enter a judgment on the sufficiency of the pleading. It was, also, within the power of the court during the same term at which that order was entered, to permit the order to be opened for further argument and citation of authority. It matters not that in the final order overruling the demurrer to the petition as finally amended whether the judge overruled the demurrer out of courtesy to his confrere who had entered the original order overruling the general demurrer to the original petition, as his final order may seem to imply, or whether he overruled the demurrer under an application of the law as it existed prior to the amendment of Code (Ann.) § 81-1001 in 1952, believing that the amendment did not reopen the pleading to demurrer, the correct result was reached in the final order in the application of the rule stated in the Lindsey case.
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.