DECIDED JANUARY 20, 1964.
Action for damages. Albany City Court. Before Judge Jones.
Smith, Gardner, Kelley Wiggins, Fred E. Bartlett, Jr., for plaintiff in error.
Frank F. Faulk, Jr., contra.
1. Where a person hires his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as the servant of the person to whom he is hired, although he remains the general servant of the person who hired him; and, where the contract of hiring requires the furnishing of a competent servant, the breach of such contract by the failure to furnish a competent servant does not constitute an actionable tort unless it be shown that the hirer knew, or in the exercise of ordinary care should have known, that the servant was incompetent and that the incompetency resulted in damage to the party to whom the servant was hired. It follows that upon application of the above principles to the first count of the petition in the instant case, which failed to allege that the hirer knew or in the exercise of ordinary care should have known that the servant was incompetent, the first count of the petition failed to set forth a cause of action and the trial court erred in overruling the general demurrer thereto.
2. As distinguished from the first count, the second count of the petition set forth a cause of action on the theory of respondeat superior by alleging that the defendant was an independent subcontractor who, alone, directed and controlled the work of its servant whose negligence caused the damage to plaintiff, and the trial court did not err in overruling the general demurrer thereto; however, upon the trial of the case, the uncontradicted evidence conclusively showed that the case fell within the rulings of headnote 1 above. The trial court, therefore, erred in overruling the defendant's motion for a judgment notwithstanding the mistrial (verdict) as to count 2 of the petition. Code Ann. § 110-113; Gordy Tire Co. v. Bulman, 98 Ga. App. 563 ( 106 S.E.2d 332).
DECIDED JANUARY 20, 1964.
The plaintiff, Ed. Smith, brought an action against the defendant, Georgia Electric Company, seeking to recover damages to a truck owned by the plaintiff resulting from the falling of a chimney in the demolition of some buildings which buildings were being demolished by the plaintiff, as a general contractor. The fall of the chimney was alleged to have been occasioned by the negligence of the operator of a backhoe, a piece of heavy mobile equipment used to dig trenches and holes, which plaintiff had rented from defendant together with an operator at a rental of a certain sum per hour. The defendant filed general and special demurrers to the petition and plaintiff amended by dividing the petition into two counts.
1. The first count alleged a rental of the equipment with the operator, and, construing the allegations most strongly against the pleader, Ed Smith Sons, Inc. v. Mathis, 217 Ga. 354 ( 122 S.E.2d 97), the various paragraphs alleged facts which conclusively show that the operator of the machine was under the control and direction of the plaintiff in the work he was to do, and did do, with the machine, and that the defendant therefore was not liable to the plaintiff under the doctrine of respondeat superior. See, in this connection, Ed Smith Sons, Inc. v. Mathis, 217 Ga. 354, supra; Greenberg Bond Co. v. Yarbrough, 26 Ga. App. 544 ( 106 S.E. 624); Postal Telegraph-Cable Co. v. Tucker, 33 Ga. App. 525 ( 126 S.E. 860). An amendment to this count of the petition alleging that "anything set forth in this petition with respect to plaintiff's undertaking generally to point out or direct the work to be done with said machine shall be understood to show that plaintiff exercised no control whatever over the time and manner of the work which was performed at his instance and general direction with said machine by the servant and operator of the defendant"; and, that "plaintiff hereby expressly amends each and every paragraph in his petition relating to the direction or control of the work done by the defendant's operator so that the same will conform to this allegation that the plaintiff exercised no authority, direction or control over the time and manner of said work, irrespective of whether the defendant was an independent contractor or an agent engaged in the excavation work of the plaintiff's project," was filed. This amendment was not effective as striking the particular factual allegations of the first count to the contrary.
However, there are allegations in the first count of the petition that the defendant agreed to furnish a skilled operator of the equipment, and the failure to do so was alleged as a ground of negligence on the part of the defendant.
"Mere breach of a contract cannot be converted into a tort by showing that failure to perform upon the part of the one committing the breach had resulted in [damage] . . . to the other party to the contract.
"The Civil Code, § 3807, provides that `A tort is a legal wrong committed upon the person or property independent of contract. It may be either — 1. A direct invasion of some legal right of the individual. 2. The infraction of some public duty by which special damage accrues to the individual. 3. The violation of some private obligation by which like damage accrues to the individual. In the former case, no special damage is necessary to entitle the party to recover. In the two latter cases such damage is necessary.' Section 3810, contained in the chapter on torts, provides that `Private duties may arise either from statute, or flow from relations created by contract express or implied. The violation of any such specific duty, accompanied with damage, gives a right of action.' And in L. N. Railroad Co. v. Spinks, 104 Ga. 692, 30 S.E. 968, it was decided that, `In arriving at a correct understanding of the meaning of section 3807, the words "independent of contract" must be understood as applying to each one of the three subdivisions embraced in that section. Accordingly, the third subdivision means the same as if it read, "the violation of some private obligation, independent of contract, by which like damage accrues to the individual"; and section 3810, in so far as it refers to private duties flowing from "relations created by contract, express or implied," means the same thing.
"`Every person who makes a contract of any kind is, of course, under a duty of performing it; but it would never do to hold that every breach of a civil contract, though necessarily in a sense involving a breach of the duty thereby imposed, would give rise to an action ex delicto.'" Milledgeville Water Co. v. Fowler, 129 Ga. 111, 112-113 ( 58 S.E. 643). See Code §§ 105-101, 105-104; Atlanta Gas Light Co. v. Newman, 88 Ga. App. 252 ( 76 S.E.2d 536); Washburn Storage Co. v. Elliott, 93 Ga. App. 456 ( 92 S.E.2d 28); Rhine v. Sanders, 100 Ga. App. 68 ( 110 S.E.2d 128); Georgia Kaolin Co. v. Walker, 54 Ga. App. 742 ( 189 S.E. 88).
Negligence as a matter of law exists only by statute. Barrett v. Mayor c. of Savannah, 13 Ga. App. 86 (2) ( 78 S.E. 827). A charge of negligence carries with it an imputation of knowledge or foresight in the breach of duty charged as distinguished from a mere breach of contract. Howard v. Jacobs' Pharmacy Co., 55 Ga. App. 163 ( 189 S.E. 373). Negligence is a failure to perform a duty of diligence toward one entitled thereto, or to use that degree of care which is due another, under the circumstances by the party charged. Harden v. Georgia R. Co., 3 Ga. App. 344 ( 59 S.E. 1122); Powell v. Berry, 145 Ga. 696 ( 89 S.E. 753, LRA 1917A 306); Harvey v. Bartow County, 31 Ga. App. 84 (2) ( 119 S.E. 538). It follows that a failure to allege facts showing that the defendant knew the operator furnished was unskilled, or in the exercise of ordinary care should have discovered that said operator was unskilled, is a failure to allege necessary requirements to show negligence arising out of the failure of the defendant to furnish a skilled operator. Pope v. Seaboard Air Line R. Co., 88 Ga. App. 557 ( 77 S.E.2d 55); Schulte v. Pyle, 95 Ga. App. 229 ( 97 S.E.2d 558); Marques v. Ross, 105 Ga. App. 133, 139 ( 123 S.E.2d 412); Henderson v. Nolting First Mortgage Corp., 184 Ga. 724 ( 193 S.E. 347, 114 ALR 1022). The first count of the petition failed to set forth a cause of action and the trial court erred in overruling the general demurrer to the same.
2. The second headnote requires no elaboration.
Judgment affirmed in part; reversed in part. Bell, P. J., and Hall, J., concur.