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Anderson & Tucker vs. Whitehead, Eggleston & Company.

selt by alleging a demand in his own favor against the plaintiffs, which demand he offered to set-off in this proceeding. At the hearing, his counsel admitted that the set-off was, in fact, against some only of the plaintiffs, and not against them all

The answer, which was left as it was, without amendment or any offer to amend, represented it to be against all. The court ruled that the set-off could not be allowed. The want of correspondence between the set-off alleged in the answer and that which actually existed, constitutes a sufficient reason for the decision made by the court, whatever may have been the reason present to the judge's mind. There is still rule enough in Georgia pleading to require that tliere shall be substantial conformity of the allegations to the facts, and of the facts to the allegations.

Passing over the difficulties which would have arisen ont of the want of strict mutuality between the plaintiffs' demand and the garnishee's set-off, if the set-off had been rightly described in the answer, we affirm the judgment on the ground above indicated.

Juigment affirmed.

ANDERSON & TUCKER, plaintiffs in error, vs. WHITEHEAD, 55 277

EGGLESTON & COMPANY, (lefendants in error.

.60 457 61 101 70 591 70 692

55 277 111 233

Where creditor and debtor, and another person who owes the debtor, agree

that the latter person shall be substituted for the debtor and the debtor be released, all in parol, the case is not within the statute of frauds, and the agreement need not be in writing, but the debt is extinguished as to the debtor, and the third person becomes debtor in his place.

Debtor and creditor. Statute of frauds. Before Judge KNIGHT. Cobb Superior Court. March Term, 1875.

Reported in the opinion.

GEORGE N. LESTER, for plaintiffs in error.

Anderson & Tucker vs. Whitehead, Eggleston & Company.

W. T. & W.J. WINN, for defendants.

JACKSON, Judge.

This suit is brought by Whitehead, Eggleston & Company, to recover a balance on an account from Anderson & Tucker. The defendants defend by setting up an agreement between plaintiffs and themselves, and Reede & Herndon, whereby it is agreed by the three firms that Reede & Herndon shall pay the debt of defendants to plaintiffs, and plaintiffs shall look to them for payment and release defendants, Reede & Herndon being indebted to defendants as much as the account of plaintiff's against defendants. All parties assent to this arrangement, and a payment is made by Reede & Herndon directly to plaintiffs and accepted and credited on the account; and defendants have failed to collect or press their claim upon Reede & Herndon in consequence of the agreement. On this defense issue is joined and the evidence is conflicting. The agreement is in parol, and the court charged the jury as follows: “It seems to me that the defendants, in order to set up their defense of a release, ought to have something tangible, such as a receipt or some other writing. A release, it seems to me, would not be inferred from the testimony of the defendants in the case.” From this charge it appears that the court below thought, and impressed the thought upon the jury, that such an agreement is within the statute of frauds, and should be in writing to operate as a good defense. We do not so hold. If the facts set up by defendants be true, their defense is good though in parol. Such is the common law: Addison on Contracts, 312; 3 Parsons, 23. Such is the principle ruled by this court; 20 Georgia Reports, 403; 40 Ibid., 65. This agreement was maile years ago. Defendants' account against Reeile & Herndon seems to be out of date, and Reede & Herndon to be now insolvent; and if the plaintitfs were allowed to repudiate their agreement it would operate as a fraud upon defendants who would lose their debt upon the parties to whom plaintiffs agreed to look for pay

Western and Atlantic Railroad Company vs. Adams.

ment. The naked question is, did or did not the parties make
the agreement, and that question alone should have been sub-
mitted to the jury. It is due to the court below to state that
he
says

the case was tried so long ago that he does not remember distinctly the charge he gave, and doubts that he gave it as above quoted; but we find it in the same words in the rule nisi granted by him in 1870, immediately after the trial, and no point having been made upon its correctness here, we must conclude that he did so charge. We reverse the judgment upon the ground that the charge is erroneous, and grant a new trial.

Judgment reversed.

WESTERN AND ATLANTIC RAILROAD COMPANY, plaintiff in

error, vs. J. N. ADAMS, defendant in error.

55 279 85 200

1. An employee cannot recover damages from a railroad company for inju

ries sustained by him on account of the negligence of a co-employee, unless without fault himself, even though in performing the act which resulted

in the injury he was acting under the orders of a superior. 2. The charge, being without evidence to support it, was error.

55 279 58 490 63 183 68 706 70 678 80 230

Railroails. Torts. Negligence. Before Judge McCUTCHEN. Whitfield Superior Court. April Term, 1875.

Reported in the decision.

Johnson & McCAMY; Julius L. Brown, for plaintiff in error.

SHUMATE & WILLIAMSON, for defendant.

WARNER, Chief Justice.

The plaintiff brought his action against the defendant to recover damages for injuries alleged to have been sustained by him through the carelessness and negligence of the defendant's employees, servants and agents, (the plaintiff being also

Western and Atlantic Railroad Company vs. Adams.

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an employee of defendant,) in the running of a dirt or gravel hand-car over and against his body, thereby mashing and bruising his person, to his damage $5,000 00. The plaintiff, in his amended declaration, alleges that he was damaged $5,000 00 by having been thrown from said hand-car by the carelessness and negligence of the defendant's employees, and his body run over and crushed and otherwise injured. On the trial of the case, the jury, under the charge of the court, found a verdict in favor of the plaintiff for $1,000 00. The defendant made a motion for a new trial on the ground that the verdict was contrary to law, contrary to the evidence, and without evidence to support it, and for alleged error in the charge of the court, which motion was overruled, and the defendant excepted.

1. It appears from the evidence in the record that the plaintiff was in the employment of the defendant as a trackhand, working on its road; that he was working under Bennett, who was the boss of that section of the road ; that Bennett laid the authority to employ and discharge the hands who worked under him, and they were subject to his orders and directions when engaged in the performance of their work on the defendant's road; at the time the alleged injury occurred, the plaintiff and the other hands, six in number, including Bennett, got on a dump-car, with their tools, to return to the shanties where they staid at night; the plaintiff lived in a house about five hundred yards from the shanties; when they were within about two hundred yards of plaintiff's house, boss Bennett asked the plaintiff whether he would get off at or opposite his house; plaintiff replied, “I reckon so;" Bennett then said, “I will take your place and help kick the dump up to the shanties ;” Bennett then got down on the plank upon which plaintiff was sitting, and close up to him, behind him, and tole plaintiff to get back and get his coat and bucket and be ready to get ofl. Plaintiff got up and stepped around Bennett, and in doing so, he lost his balance, and in attempting to step on the dump, his foot either missed or slipped off, and he fell in front of the car which ran upon him, running Western and Atlantic Railroad Company vs. Adams. up his leg and thence on his body up to his chest, and was seriously hurt. Plaintiff stated on his cross-examination that “Bennett did not order me to get off, but said I could get off if I desired to do so, and if I wanted to get off, to get back and get my coat and bucket. The car was going four or five miles an hour. What Bennett did was done as a favor to me, I suppose, that I might get off without going up to the shanties and have to walk back.” Bennett had entire control of the car; controlled its movements; he required all the hands to obey his orders, who all lived at the shanties except the plaintiff. It appears from the evidence, that all the hands were careful, prudent men.

Three witnesses testified that on the night of the day plaintiff was hurt, that they called to see him, when one of them remarked, this is a bad affair; plaintiff replied, yes; and that it would not

a have occurred, but for his own fault, or as one of the witnesses states, he said it might not have occurred but for his own carelessness. The court charged the jury, amongst other things, “If you find that Bennett, from the evidence, had authority to employ and disciiarge the hands under him, and had authority over plaintiff with power to discharge him for disobedience of orders, and you further find from the evidence, that the injury was caused by the order or direction of Bennett, then plaintiff is not precluded from recovering, even though he was guilty of some wrong or fault himself, which contributed to the injury.” This charge of the court was error. Whilst the statute authorizes an employee of a railroad company to sue it to recover damage for an injury caused by the negligence of another employee of the company, still, to entitle the plaintiff as such employee to recover at all against the company, he must be without fault or negligence on his part: Code, section 3036 ; Rowland vs. Cannon, 35 Georgia Reports, 105; Sears vs. The Central Railroad and Banking Company, 53 Ibid., 630. The statute makes no distinction between the grades or classes of enployees of a railroad company, and therefore the courts are not authorized to recognize any such «listinction so as to enable the plaintiff to recover on

VOL. LV. 19.

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