Mrs. Seneca B. Bray sued the Westinghouse Electric Corporation and Irvin H. McGuire to recover damages for the loss of consortium by reason of injuries alleged to have been caused by the negligence of the defendants. As to the negligence of the defendants, the petition as amended alleged: "1. Petitioner is the wife of Seneca B. Bray and has been damaged by the Westinghouse Electric Corporation and Irvin H. McGuire in the amount of $5,000, by reason of the following facts: (a) On August 22, 1958, Seneca B. Bray was working with George Gunter, loading a cart approximately 8 feet long and 4 feet wide, with long steel pipes immediately outside the entrance of the Westinghouse Electric Corporation's plant on the grounds of Westinghouse Electric Corporation on the Newton Bridge Road, Clarke County, Georgia. (b) Seneca B. Bray and Gunter were working under direction of Irvin H. McGuire, and Westinghouse Electric Corporation. (c) Seneca B. Bray and Gunter loaded these pipes on said cart until around 12 noon at which time the cart was half loaded. (d) Irvin H. McGuire had gone to town and Seneca B. Bray and Gunter waited until McGuire returned from town at which time Seneca B. Bray asked McGuire if he should load more pipe on the cart. McGuire told Seneca B. Bray to load the cart full of heavy iron pipe which Seneca B. Bray and Gunter proceeded to do. (e) Said steel pipe was longer than the cart and protruded over both ends of the cart. (f) Said cart had a hitch on its front end which could be hitched to by a truck, mules, or tractor and said cart could be pulled along. (g-a) Said cart and the standards thereon and the fork lift truck which is referred to hereinafter, all of which were owned, operated and maintained by defendant, Westinghouse Electric Corporation, and furnished by said Westinghouse Electric Corporation, were dangerous, defective and not suitable for the purpose for which they were being used, all of which was known by Westinghouse Electric Corporation or could have been known by the exercise of ordinary diligence or prudence, in the following particulars: 1. Said cart was not properly suited for hauling long pipe in connection with said particular fork lift truck as it had a short hitch thereon and should have had a long tongue on which the fork lift truck could hitch to and pull said cart, or said fork lift truck should have bad a long hitch thereon, as said hitch or tongue should have been at least 6 feet long. 2. Said standards on said cart were made of a soft and defective type of pine wood, and were also of insufficient size or strength to retain the weight of a load of iron pipe on said cart, said size being 2 x 4 inches. (g-b) Said defects were not obvious to Seneca B. Bray and were also unknown to Seneca B. Bray, as said pine standards had a coating on the outside thereof and Seneca B. Bray could not see inside said standards nor could he determine their strength. (g-c) Seneca B. Bray did not know what type Of motivation would be used by defendant in pulling or pushing said cart into the Westinghouse plant as he had not done this type work before and had never seen said fork lift truck until McGuire drove it up to said cart, at which time he was bending down scotching the wheel thereof and bad no opportunity to examine said fork lift truck. (g-h) Irvin H. McGuire who intended to walk into the main plant of the Westinghouse Electric Corporation and procure a fork lift truck in order to either push or pull said cart loaded with pipe, then walked off from where plaintiff's husband was loading the pipe and in a few minutes came back driving a fork lift truck belonging to the Westinghouse Electric Corporation. (g-i) McGuire told Seneca B. Bray to "scotch" the left front wheel of the cart with a wooden block which Seneca B. Bray did by stooping over and placing a wood block behind the wheel. McGuire backed the fork lift truck up to the cart in a dangerous and reckless manner without looking and hit the protruding pipe on the front end of the cart, which caused the two standards on the left side of the cart to break and the pipe fell off the cart and onto the right leg and foot of Seneca B. Bray. (g-j) When Seneca B. Bray heard the fork lift truck hit the pipe, he jumped back to avoid the pipe falling off the cart, but Seneca B. Bray was unable to completely avoid said pipe hitting his right leg and foot. 3. Plaintiff shows that at all times specified herein, said Irvin H. McGuire was the agent and servant of the Westinghouse Electric Corporation and was in the prosecution of its business at the time of said injury and also that at all times specified
herein, Seneca B. Bray was under the direction and control of Westinghouse Electric Corporation and its employees and agent, Irvin H. McGuire. 6. All of the aforesaid injury and damage was directly and proximately caused by the following acts of negligence on the part of Irvin H. McGuire as agent and servant of the Westinghouse Electric Corporation and by Westinghouse Electric Corporation, to wit: a. Irvin H. McGuire backing the lift truck in a dangerous and reckless manner without looking, into the pipe loaded on said cart, causing the standards on said wagon to break and allowing said pipe to fall on the leg and foot of Seneca B. Bray. b. Westinghouse Electric Corporation was negligent in providing said cart, fork lift truck, cart, and standards for use as alleged, which were dangerous, defective and not suitable for the purpose intended of hauling pipe. c. Irvin H. McGuire in directing Seneca B. Bray to load an excessive amount of pipe on said cart. 7. Plaintiff shows that Seneca B. Bray was totally without fault in said matter and that all the injuries to him were caused by the negligence of the Westinghouse Electric Corporation and its employee and agent, Irvin H. McGuire. 8. Plaintiff shows that Irvin H. McGuire was a subprincipal of Westinghouse Electric Corporation and directed Seneca B. Bray in his work, but Seneca B. Bray was not an employee of Westinghouse Electric Corporation, but worked for an independent contractor." The defendant Westinghouse Electric Corporation filed general and special demurrers to the petition as amended, which were sustained and the petition was dismissed as to Westinghouse Electric Corporation. The plaintiff excepts to this judgment.
The questions in this case are whether a cause of action is set out against Westinghouse on any one or more of three theories: (1) whether the sole proximate cause of the injury was the negligence of a vice-principal, or subprincipal of Westinghouse; (2) whether the proximate cause was the concurrent negligence of a vice-principal and other negligence of Westinghouse in addition to that of a vice principal; (3) whether the proximate cause was the concurrent negligence of a fellow servant of the plaintiff's husband and negligence of Westinghouse other than that of the fellow servant. See annotations under Code 66-304, catchword "Concurrent." If the petition falls under any one of the foregoing sets of conditions the petition sets forth a cause of action.
On the other hand, if the petition, construed most strongly against the plaintiff, shows that the sole proximate cause of the injuries was the negligence of a fellow servant of the plaintiff's husband, no cause of action is set forth and the court correctly sustained the general demurrer to the petition.
1. It is too well known to require citation of authority (but see Code 66-301 and 66-303) that the liability of such a master as is here involved, to a servant for negligence is strictly limited. The petition does not state a cause of action based on the negligence of a vice-principal alone. In the first place the allegations of the petition are conflicting and must be construed against the plaintiff. The petition alleges that the Westinghouse representative was a servant and a subprincipal. In the second place the so-called servant or subprincipal was engaged in common labor and not a non-delegable duty of the master. Moore v. Dublin Cotton Mills, 127 Ga. 609, 623 (56 S. E. 839, 10 L. R. A. (NS) 772); Story v. Crouch Lumber Co., 61 Ga. App. 210, 212 (6 S. E. 2d 86); Haynie v. Foremost Dairies, 54 Ga. App. 369 (187 S. E. 907). "Subjection to control and direction by the same general master in the same common object, and not the fact that employees are paid by the same general master, is the test of fellow-service." Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194 (4) (33 S. E. 961); Ellington v. Beaver Dam Lumber Co., 93 Ga. 53, 57 (19 S. E. 21).
2. The petition does not allege a cause of action based on the theory that the plaintiff's husband's injury was based on the concurrent negligence of a vice-principal of Westinghouse or on the concurrent negligence of a fellow servant plus an added act of negligence of Westinghouse. That the representative of Westinghouse was not a vice-principal has been established. The petition does not allege that an act of negligence of Westinghouse in addition to the fellow servant's negligence was the proximate cause of the injury. The petition plainly alleges that the sole proximate cause of the injury was McGuire's backing the fork lift truck up to the cart (where the pipes were placed) in a dangerous and reckless manner. It is not alleged except by way of conclusion that the furnishing of the wrong equipment or the overloading of the cart had any bearing on the pipe's falling on plaintiff's husband. The overloading, if any, and the kind of truck, were obvious to the plaintiff's husband and he assumed the risks which they might have caused. It is not alleged that the standards, 2" x 4" 's of soft pine, coated on the outside, were equipment added to the truck by Westinghouse and there are no facts showing that Westinghouse knew or should have known that the standards were weak and insubstantial for ordinary or even for an overloaded cart of pipes, and no facts are alleged showing a duty of test or inspection on the part of Westinghouse. In brief, stripped of its conclusions, the petition shows that the sole proximate cause was the fact that McGuire recklessly backed the truck into the cart of pipe and that as a result of this unexpected and unusual conduct the pipes were suddenly and forcibly thrown against the standards causing them to break. This was the only negligence proximately causing the injury, and the plaintiff's husband assumed the risk involved, being that of the negligence of a fellow servant. See generally in connection with the foregoing conclusions: Champney Island Co. v. Bell, 44 Ga. App. 826 (1)
(163 S. E. 513); Davis v. Georgia Coating Clay Co., 63 Ga. App. 265
, 266 (11 S. E. 2d 60); Self v. West, 82 Ga. App. 708
(1a) (62 S. E. 2d 424); Holman v. American Automobile Ins. Co., 201 Ga. 454 (2)
(39 S. E. 2d 850); Daniel v. Forsyth, 106 Ga. 568
(32 S. E. 621); Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030 (6)
(48 S. E. 438); Frazer v. Smith & Kelly Co., 136 Ga. 18 (2)
(70 S. E. 792); Williamson v. Kidd, 65 Ga. App. 285
(15 S. E. 801); Ludd v. Wilkins, 118 Ga. 525
, 526 (45 S. E. 429); Hamby v. Union Paper Mills Co., 110 Ga. 1 (1)
(35 S. E. 297); Strickland v. Faughner, 63 Ga. App. 805
, 809 (12 S. E. 2d 371).
The court did not err in sustaining Westinghouse's general demurrer to the petition and in dismissing the action as to it.
Judgment affirmed. Nichols and Bell, JJ., concur.