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HIGGINS, Executrix v. D. & F. ELECTRIC COMPANY.
HIGGINS v. D. & F. ELECTRIC COMPANY.
40946.
40947.
Action for damages. Fulton Superior Court. Before Judge Pharr.
JORDAN, Judge.
Count 1 of each petition as amended stated a cause of action against the defendant electrical company, and the trial court erred in sustaining the company's general demurrer and motion to dismiss each of these counts.
The plaintiff on December 18, 1963, filed suit to recover damages for the wrongful death of her husband allegedly caused by the negligence of the defendant electrical company and of its employee and agent, Claude Cecil Cash, who was named as a party defendant but was never served. A companion suit was brought by the plaintiff in her capacity as executrix of her husband's estate to recover damages for pain and suffering, medical and funeral expenses in connection with the alleged wrongful death. The material allegations of both petitions are identical and they will be treated and referred to as one petition for the purposes of this opinion.
The defendant electrical company filed its demurrers on January 16, 1964. On February 6, 1964, prior to hearing on the demurrers, the plaintiff filed an amendment to her petition adding a second count thereto. On February 18, 1964, the defendant company renewed its demurrers and further demurred to both counts of the petition as amended.
The renewed demurrers to the amended petition came on to be heard before the trial court on March 6, 1964, and an order was entered by the court sustaining defendant's general demurrers to both counts of plaintiff's amended petition. On March 11, 1964, the court vacated the March 6 order and entered a new order, still sustaining defendant's demurrers to both counts of plaintiff's amended petition but allowing plaintiff fifteen days in which to amend. On March 24, 1964, within the fifteen day period, plaintiff filed a second amendment to her petition.
Count 1 of the amended petition alleged that at all times referred to therein the defendant electrical company was engaged in rendering services to the general public as an electrical contractor, such services including the installation of wiring for the transmission of electric current in private residences; that the rendering of services to the public as an electrical contractor in Fulton County, Ga., is regulated by an Act of the General Assembly of the State of Georgia (Ga. L. 1937-1938, Ex. Sess., p. 327) as amended by the Act of 1943 (Ga. L. 1943, p. 484) that the defendant electrical company was in compliance with said statute at all times referred to therein, in that its president and managing officer, Walter C. Fink, Jr., had been duly licensed as a master electrician by the Fulton County Board of Electrical Inspectors; and that at all times referred to therein defendant Cash was employed as an electrician by defendant electrical company but was not himself licensed as a master electrician under the aforesaid Acts.
Count 1 further alleged that during and prior to the times referred to therein the defendant company followed a practice of authorizing certain of its employees, including defendant Cash, to negotiate and enter into contracts on behalf of the defendant company for the performance of electrical services; that under said practice the employee furnished the labor and materials for performance of the work so contracted and received payment therefor, and the defendant company retained the right to direct and control the time and manner of performance of such work, obtained the required work permits from the appropriate governmental authority, and assumed the responsible direction and control of the work performed by such employee; that defendant Cash was allowed to participate in said practice as an emolument of his employment with the defendant company; that said practice was beneficial to the defendant company in that the valuable fringe benefit conferred upon those employees allowed to participate in said practice was reasonably calculated to stabilize and harmonize the employer-employee relationship between defendant company and said employees; and that plaintiff's late husband, Anthony B. Higgins, was a general building contractor who had dealt on prior occasions with both the defendant company and defendant Cash, and said Higgins was well aware of the aforesaid practice of the company.
Count 1 further alleged that the electrical work to be performed pursuant to said agreement required approval by the Electrical Inspection Department of Fulton County, Georgia, which approval would be given only to work performed by an electrical contractor duly licensed pursuant to the aforesaid Acts, and this fact was well known to Anthony B. Higgins and to defendant Cash; that defendant Cash represented to said Anthony B. Higgins that he was authorized to enter into such agreement on behalf of the defendant company pursuant to the aforesaid practice of the company, and in making the agreement said Higgins relied upon said representation and upon the fact that the defendant company had previously held defendant Cash out to Higgins as its authorized agent under the aforesaid practice.
Count 1 further alleged that on or about September 1, 1962, defendant Cash entered upon the performance of the agreed work at the residence of plaintiff and he performed portions of said work from time to time thereafter; that on or about September 7, 1962, before the agreed work had been completed, Anthony B. Higgins and defendant Cash, who still purported to act as authorized agent for and on behalf of the defendant company, modified and expanded the terms of the aforesaid agreement so as to include the changing of the entire electrical system throughout the residence from a 100-amp fuse-type system to a 200-amp breaker-type system; that to induce said Higgins to authorize such additional work, defendant Cash had represented the additional work would qualify Higgins to participate in a certain Residential Rewiring Program of Georgia Power Company; and that under said program Georgia Power Company made a public offer to pay to licensed electrical contractors the sum of $100 to be applied towards payment of the contractor's charge to the homeowners for performing certain types of electrical work which qualified under the terms of the Georgia Power Company program.
Count 1 further alleged that defendant Cash performed a part of the agreed work at the Higgins' residence on September 23, 1962, at a time when Anthony B. Higgins was present but not in control of the work; that during the performance of work on said date, it became necessary for defendant Cash to drill two holes in a floor joist in the basement of the Higgins' residence; that because of an alleged physical disability, defendant Cash informed Anthony B. Higgins that he (Cash) was unable to hold and support an electric drill needed to drill the required holes, and defendant Cash enlisted Anthony B. Higgins to operate the electric drill and bore the required holes; and that defendant Cash instructed Anthony B. Higgins as to the locations of the holes to be drilled and thereupon departed the basement area.
Count 1 further alleged that the drilling of such holes with an electric drill in the vicinity of hidden wires charged with electricity is, in its nature, dangerous to the operator of the drill, however carefully performed, and this fact was well known to defendant Cash but was not known to Higgins, who had no training or experience as an electrician; that in boring the required holes as instructed by defendant Cash, the drill being operated by Anthony B. Higgins struck a hidden wire charged with electricity located behind the floor joist, causing a severe electrical shock to be administered to Higgins; and that said electrical shock caused such excruciating pain and suffering to Higgins that he died from said shock several minutes after it was sustained by him.
Count 1 further alleged that the defendant company furnished no supervision, direction or guidance to defendant Cash prior to the time Higgins sustained the aforesaid fatal injury; and that defendant Cash thereafter completed his performance of the agreed work on or before October 5, 1962.
Count 1 further alleged that on or about October 5, 1962, the defendant company, acting by and through its president, Walter C. Fink, Jr., executed and submitted to Georgia Power Company a written application seeking to have the electrical work performed as aforesaid qualified under the terms of the Georgia Power Company's Residential Rewiring Program hereinabove described; that prior to execution of said application, the defendant company had actual knowledge of all material facts stated herein, including actual knowledge of the wrongful acts committed by defendant Cash, as hereinafter more particularly described, and by such application the defendant company represented and acknowledged to Georgia Power Company that the aforesaid work performed by defendant Cash was done by the company or under its direction, and that the defendant company was fully responsible therefor; that it was anticipated by the defendant company that said application to Georgia Power Company would result in that company paying to the defendant company the sum of $100, but the application was rejected by Georgia Power Company on the ground that the work in question did not qualify under the terms of its Residential Rewiring Program.
Count 1 further alleged that on or about October 5, 1962, the defendant company, acting by and through its president, Walter C. Fink, Jr., applied to the Fulton County Electrical Inspection Department for a permit covering the aforesaid electrical work; that along with said application the company remitted to said department its check in the amount of $5.40 in payment of inspection fees charged by said department, and the requested permit was duly issued to the electrical company; that by said application the defendant company represented and acknowledged to the Fulton County Electrical Inspection Department that the aforesaid electrical work was performed by it or under its direction and that it was fully responsible therefor; that on or about October 5, 1962, the defendant company, by means unknown to plaintiff but well known to the defendant company, notified the Fulton County Electrical Inspection Department that the said electrical work was ready for inspection, whereupon the work was inspected as the work of the defendant company and approved by said department.
Count 1 further alleged that under the facts hereinabove set forth the defendant Cash was guilty of specific acts of negligence in allowing a person untrained in the operation of an electric drill to operate same in the vicinity of hidden electric wires which defendant Cash knew or in the exercise of reasonable care should have known were present; in failing to warn Anthony B. Higgins of the danger to life and health inherent in the operation of an electric drill in the vicinity of hidden wires charged with electricity which defendant Cash knew or in the exercise of reasonable care should have known were present; in failing to cause the electric drill to be properly grounded so as to prevent an electric shock to the operator thereof in the event live electric wires were contacted by the drill; in failing to investigate the possibility of live electrical wires being located behind the floor joist through which holes were to be drilled; in failing to supervise the operation of the electric drill by Anthony B. Higgins; and in failing to provide Anthony B. Higgins with insulated gloves to prevent the possibility of his suffering an electric shock in the event the drill contacted live electric wires.
Count 1 further alleged that under the facts hereinabove set forth the defendant electrical company was guilty of negligence in failing to provide supervision, direction and guidance to defendant Cash in the execution of the work agreed to be performed for Anthony B. Higgins; and that the foregoing acts of negligence on the respective parts of defendant Cash and the defendant company were the sole and proximate cause of the death of Anthony B. Higgins.
Count 1 further alleged that the defendant company was also liable for the acts of negligence of defendant Cash by virtue of the fact that defendant Cash performed said acts as an agent of the defendant company acting within the scope of his employment; that the defendant company is estopped to deny the agency of defendant Cash; and that the defendant company ratified the acts of defendant Cash as being acts of an agent and employee acting within the scope of his employment.
The plaintiff in count 2 of the amended petition alleged that the defendant company, acting through its president, Walter C. Fink, Jr., followed a practice of allowing certain of its employees, including the defendant Cash, to contract and perform services as an electrician outside their regular hours of employment with the company, such work to be performed under the responsible charge, direction and license of the company, with the compensation for such work to be paid by the person receiving such services directly to the company's employee, said compensation to be thereafter divided between the company and its employee in a manner unknown to the plaintiff but well known to the defendant. It was alleged in this count that the plaintiff's husband engaged the defendant Cash to perform the required work, it being agreed and understood between Higgins and Cash that the materials and services were to be furnished and performed by Cash under the responsible charge, direction and license of the defendant company pursuant to the aforesaid practice.
The defendant electrical company renewed its general demurrers to the petition as amended pursuant to the order of court of March 11, 1964, and in addition thereto filed a motion to dismiss the amended petition on the ground that the plaintiff had failed to amend her petition as required by the prior order of court. The trial court on June 1, 1964, entered an order in which it sustained the defendant company's renewed general demurrers to the petition as amended and the motion to dismiss, and dismissed the petition. The exception is to this judgment.
It is contended by the defendant electrical company that the plaintiff's petition did not state a cause of action against it, and was thus properly dismissed on general demurrer, for the reasons that the facts alleged affirmatively disclosed that (1) the contract to perform the electrical work in the home of the plaintiff and her decedent was the individual undertaking of Cash who was not acting as agent or employee of the defendant company; (2) the decedent in assisting Cash was a volunteer and the company had breached no duty which it owed him in that capacity; and (3) the decedent failed to exercise ordinary care for his own safety. It is also contended that the trial court properly sustained the motion to dismiss the petition as finally amended as the amendments filed pursuant to the order of March 11, 1964, did not materially change the plaintiff's petition which the court had previously held in the order of March 11, 1964, to be insufficient to state a cause of action.
1. While the allegations of count 1 of the petition as finally amended show that the materials and labor for the work to be performed in the plaintiff's home were to be furnished by Cash and that he was to receive the compensation therefor, it is alleged that in performing these services Cash was acting in behalf of the defendant company and within the scope of his employment under a contract executed by Cash as agent of the company. Under the terms of this contract the company was to obtain the required work permits from the appropriate governmental authority and it was to assume the responsible direction and control of the work to be performed by Cash, the petition specifically alleging that the company retained the right to direct and control the time and manner of performance of such work.
The petition also alleged in count 1 that the defendant company had authorized Cash to execute contracts of this nature in its behalf and that Cash had represented to the plaintiff's decedent that he was acting under this authority in contracting with him. It was further alleged that the decedent knew of this practice of the company in allowing certain of its employees, including Cash, to negotiate contracts of this nature in behalf of the company, and that the company had previously held Cash out to him as their agent for this purpose, and that the plaintiff's decedent relied on this knowledge in negotiating this contract.
Under these allegations, count 1 of the petition was sufficient not only to allege the principal-agent relationship between the defendant company and Cash but was also sufficient to authorize a finding that the company was estopped to deny this agency relationship. "When an alleged principal, by acts or conduct, has knowingly caused or permitted another to appear as his agent, he will be estopped to deny the agency, to the injury of third persons who have in good faith and in reasonable prudence dealt with the apparent agent on the faith of the relation." Folsom v. Miller, 102 Ga. App. 232, 234 (116 SE2d 1); Davis v. Citizens-Floyd Bank &c. Co., 37 Ga. App. 275 (1) (139 SE 826); Fitzgerald Cotton Oil Co. v. Farmers Supply Co., 3 Ga. App. 212 (1) (59 SE 713); Bacon v. Dannenberg Co., 24 Ga. App. 540 (4) (101 SE 699).
Furthermore, the allegations of count 1 of the petition disclose that the defendant company with full knowledge that Cash, purportedly acting in its behalf, had contacted with the plaintiff's decedent, subsequently secured the required work permit from the Fulton County Electrical Inspection Department and after the job had been completed made application to the Georgia Power Company for participation in its residential rewiring program. Under these allegations the following Code sections are applicable: "The principal shall be bound by all the acts of his agent within the scope of his authority; if the agent shall exceed his authority, the principal may not ratify in part and repudiate in part; he shall adopt either the whole or none." Code 4-302.
"A ratification by the principal shall relate back to the act ratified, and shall take effect as if originally authorized. A ratification may be express, or implied from the acts or silence of the principal. A ratification once made may not be revoked." Code 4-303.
As stated by the Supreme Court in Greene v. Golucke, 202 Ga. 494 (1) (43 SE2d 497), "Ratification is the affirmance by a person of a prior act which did not bind him but which was done or professedly done on his account, whereby the act, as to some or all persons, is given effect as if originally authorized by him." Thus, assuming that the defendant company had not originally authorized Cash to contract in its behalf in this specific matter, the acts of the company (allegedly done with full knowledge of the material facts surrounding the transaction in question) in securing the work permit and in making the application with the Georgia Power Company in execution of the contract purportedly made by Cash in behalf of the company, would authorize a finding that it had recognized and ratified the authority of Cash to so act for it.
The allegations of count 1 of the petition as amended pursuant to the order of the court of March 11, 1964, were sufficient to allege that the work to be performed in the home of the plaintiff was the undertaking of the defendant company and not of Cash individually, and this count of the petition was not subject to general demurrer on this ground.
2. (a) The contention of the defendant company that the plaintiff's decedent was a volunteer as to the company is predicated upon the principle of law that: "One who, without any employment whatever, but at the request of a servant who has no authority to employ other servants, voluntarily undertakes to perform service for a master is a mere volunteer, and the master does not owe him any duty, except that which he owes to a trespasser, that is, not to injure him wilfully or wantonly after his peril is discovered." Central of Ga. R. Co. v. Mullins, 7 Ga. App. 381 (1) (66 SE 1028); Atlanta &c. R. Co. v. West, 121 Ga. 641 (49 SE 711, 67 LRA 701, 104 ASR 179); Early v. Houser & Houser, 28 Ga. App. 24 (109 SE 914); Barber v. Rich's, Inc., 92 Ga. App. 880 (90 SE2d 666).
As held in Southern R. Co. v. Benton, 57 Ga. App. 520, 523 (196 SE 256), however, this principle of law has no application to a case such as this which is not based on the theory that at the time of the injury, the plaintiff's decedent was a servant of the defendant company, employed by an agent of the defendant company authorized to employ other servants; but rather, is based on the theory that the decedent had an interest in the subject matter sufficient to authorize him to lend his assistance to the company's employee. In the Benton case, supra, the plaintiff had brought a bale of cotton to the defendant's depot for shipment by the defendant railroad, and he was injured while he was attempting to place the bale of cotton in the defendant's warehouse at the request of the defendant's agent. The court thus held, at page 523: "Under the allegations of the petition, the plaintiff, at the time of his injury, was engaged in an act beneficial and of direct interest to himself as well as to the defendant, viz., the offering for shipment of his cotton over the line of the defendant, and in no sense of the word could he be considered a mere volunteer or intermeddler."
It is our opinion that here, as in the Benton case, supra, the plaintiff's decedent in lending assistance to the defendant company's employee who was allegedly engaged in performing certain electrical work in the decedent's home pursuant to a contract executed by the decedent and the company, was engaged in an act "beneficial and of direct interest to himself as well as to the defendant," and was not a mere volunteer. This case comes within the rule applied in Hughes v. Weekley Elevator Co., 37 Ga. App. 130, 134 (138 SE 633) that, " 'One assisting the servants of another to facilitate his own business, or that of one to whom he sustains a contractual business relation, mutually beneficial is not a volunteer.' Davis v. Savannah Lumber Co., 11 Ga. App. 610 (2) (75 SE 986)." This principle of law had previously been recognized by the Supreme Court in Rhodes v. Georgia R. &c. Co., 84 Ga. 320, 326 (10 SE 922, 20 ASR 362).
"The word 'business' is commonly employed in connection with an occupation for livelihood or profit, but it is not limited to such pursuits. When Jesus said, 'Wist ye not that I must be about my Father's business?', He had no reference to matters involving pecuniary rewards." Griffin v. Russell, 144 Ga. 275, 278 (87 SE 10, LRA 1916F 216, AC 1917D 994).
(b) It is further contended by the defendant company in this regard that if the plaintiff's decedent was not a volunteer then he must be deemed to be a fellow servant of Cash and subject to the fellow-servant rule. This contention is decided adversely to the company's position in the Hughes case, supra, but the reasons for the non-applicability of the fellow-servant rule to a situation such as this are more clearly delineated in 56 CJS 1091, 328b, as follows: "One who, in furtherance of his own interests, assists the servants of another in the performance of their work is not a trespasser, because he is lawfully in his place; he is not a fellow servant with the other servants, because he is not directly or indirectly retained or employed by the master of such servants; he is not a mere volunteer, because he does the work to further his own interests or those of his master. Therefore the master of such other servants is liable to him for injuries received as a result of their neglect or misconduct, and the fellow-servant rule is not applicable. This is true, even though the service is not wholly voluntary, but is induced by the request of a servant in the master's employ." See also Restatement of the Law, Ga. Anno., Agency 2nd, 485.
(c) Count 1 of the petition was not subject to general demurrer, therefore, on the grounds that under the allegations of the petition the plaintiff's decedent was either a mere volunteer as to the defendant company or was a fellow servant of Cash.
3. The contention of the defendant company that the allegations of the petition affirmatively disclosed that the plaintiff's decedent failed to exercise ordinary care for his own safety is likewise without merit as it cannot be said as a matter of law that the plaintiff's decedent who was alleged to be a building contractor, knew or should have known of the dangers incident to operating the electric drill, and that he is therefore barred from a recovery. This is an issue for the jury's determination.
4. Count 1 of the amended petition stated a cause of action against the defendant electrical company, and the trial court erred in its order of June 1, 1964, in sustaining the general demurrer to that count of the amended petition.
5. (a) The trial court in its order of March 11, 1964, properly sustained the general demurrer of the defendant company to count 1 of the plaintiff's petition for the reason that the allegations of count 1 of the petition prior to the amendments offered pursuant to the order of March 11, 1964, were utterly insufficient to allege the relationship of principal and agent between the defendant company and Cash with respect to the alleged execution of the contract with the plaintiff's decedent. However, as held in Division 1 of this opinion, count 1 of the petition as amended pursuant to that order, did sufficiently allege such agency relationship; and it cannot be said therefore that these amendments to count 1 were not material. Accordingly, the trial court erred in sustaining the defendant company's motion to dismiss count 1 of the petition as finally amended. See in this connection, Clark v. S.F.C. Acceptance Corp., 109 Ga. App. 180 (135 SE2d 473).
(b) An examination of the amendments to count 2 of the petition made pursuant to the order of March 11, 1964, disclose, however, that they did not materially change this count; and it was not error therefore to dismiss count 2 of the petition as finally amended on motion of the defendant company for the reason that, under these circumstances, the order of March 11, 1964, established the law of the case that count 2 did not set forth a cause of action. Northside Manor v. Vann, 219 Ga. 298 (133 SE2d 32). It is unnecessary to rule on the order sustaining the general demurrers of the defendant company to this count of the petition as amended.
Greene, Neely, Buckley & DeRieux, Harry L. Greene, contra.
Smith, Swift, Currie, McGhee & Hancock, Donald D. Smith, for plaintiffs in error.
DECIDED NOVEMBER 19, 1964 -- REHEARING DENIED DECEMBER 8, 1964.
Friday May 22 21:41 EDT


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