N.C. Moahs Keith vs. The Walker Iron and Coal Company. Wilkes and McDuffie Counties, decided at March term, 1887. 79 Ga. 125. 3. There was a proposition to amend in the superior court, these cases having gone to that court by appeal. Precisely what amendment was proposed is not clear from the record. We find that the record does not go as far as the argument in defining the nature of the amendment that was contemplated. But as the amendment, if it had proposed a cause of action against the county, would have made a case where there was no case at all before, there was nothing to amend by; and we think the court was right, no matter what the amendment was, to reject it and refuse leave to make it. So the judgment denying the amendment, because there was no cause of action set forth against the county recognized by law, was correct. Judgment affirmed. KEITH VS. THE WALKER IRON AND COAL COMPANY. A corporation building a structure composed in part of brick-work and in part of wood-work, is not responsible for the fall of the masonry upon the carpenter whereby he was killed, if due care was exercised in selecting the mason, and if there was no reason why he should not be fully trusted as an expert in his business, though his work proved defective, and the carpenter thereby lost his life; the two workmen being co-employés of a common master and co-operating in their respective departments of labor to a common end, to wit, the erection and completion of the contemplated structure. May 14, 1888. Master and servant. Fellow-servants. Negligence. Before Judge FAIN. Dade superior court. September term, 1887. Sarah S. Keith sued the Walker Iron and Coal Co. for damages for the homicide of her husband. On the trial the following case was made by the evi Keith us. The Walker Iron and Coal Company. dence for plaintiff (apart from the question of the extent of plaintiff's loss): Colyar was general manager of the company, and was at the company's mines during only part of each day. Bogle was assistant manager and manager during Colyar's absence. O'Brien was foreman of the brick-work. Reese was head store-keeper, and gave orders about the supplies himself, and sometimes gave orders as coming from Colyar. Wilson was boss of a gang for carpenter's and other work, and Keith was employed under him. Neither Wilson nor Keith was a brick-mason. A brick arch was constructed for the defendant by O'Brien, and temporary props were left under it. After the brick-work had been finished a few hours, Reese told Wilson that Colyar wanted flooring put in under the arch, and to see O'Brien. Wilson saw O'Brien and asked him if the brick-work were finished, and if it were safe to take out the props. O'Brien said the brick-work was done and it would be perfectly safe to knock out the props. Wilson then saw Bogle, told him O'Brien was done with the brick-work and asked him if he wanted the flooring put down next. Bogle said he did, but said nothing about knocking out the props. Wilson had seen Colyar during the day and told him that he (Wilson) was going to fix some car-trucks, and after that, going to the magazine. It was at the magazine that the work in question was progressing. It was after Colyar left for the day and about five o'clock when Wilson, with Keith and another, undertook to take the props out. Wilson, being crippled, simply directed the work. The arch looked all right, but Wilson knew nothing about masonry. Wilson told Keith and the other workman what O'Brien had said, and also told them to be careful, and if they thought there was danger to stand in the door and punch the props out. This would have been quite an inconvenient and difficult way to remove them. They said the arch had a five feet rise, Keith vs. The Walker Iron and Coal Company. and that would give them protection and there would be no danger. They went under the arch and commenced knocking out the props and had about finished romoving them when the brick-work of the arch fell in, killing Keith. Their manner of removing them was to first prize them away from the wall and then knock them out with an axe. There was evidence that the work of removing the props was carefully done, and tending to show that the arch may have been badly constructed that it lacked rods binding it together, or else firmer abutments. O'Brien was shown to have had the reputation of being a first-class workman and to have been paid first-class wages. There was some evidence as to his having done another piece of work defectively, and also as to his having been drunk occasionally, but it was not shown that the officers of the company knew of these things or suspected them. Colyar had previously told Wilson never to send men where there was any danger or where they did not want to go. At the conclusion of the evidence for the plaintiff, defendant moved a nonsuit, which was granted; and plaintiff excepted. LUMPKIN & BROCK, MCCUTCHEN & SHUMATE and GRAHAM & GRAHAM, for plaintiff. W. U. & J. P. JACOWAY, by R. J. MCCAMY, for de fendant. BLECKLEY, Chief Justice. The company, a corporation, desiring to build a magazine to contain its amunition for use in blasting, had in its employment a force of carpenters and also a brickThe mason built an arch for this structure; and after the arch was completed, he was consulted by the mason. Keith vs. The Walker Iron and Coal Company. carpenters, through their foreman, to ascertain whether it was safe to remove the props that supported the arch temporarily. He pronounced it safe; and the props were removed. While they were engaged in the removal, the arch fell, and one of the carpenters was killed. The widow of the deceased carpenter brought this action to recover damages; and upon the trial, the court granted a nonsuit. The question is, whether the evidence made a prima facie case of negligence against the corporation, -negligence in the performance of its legal duties to the deceased carpenter. It is certain that to take the mason's opinion of the safety of the arch was the best means that the corporation had of deciding upon its safety. The mason was reputed to be of the first class, and he was paid by the corporation first-class wages. In the evidence there is no indication of negligence on the part of the corporation in selecting him. He was a proper man to entrust with the execution of the work and with the decision of its safety. The evidence shows that he made a mistake in his opinion touching its safety. The arch proved to be unsafe; but the indications are that it was simply a mistake in judgment on the part of a competent expert in the formation of his opinion. We do not see that this corporation omitted any duty to the carpenter which the law bound it to perform. It was better to take the mason's opinion than that of any other agent, officer or employé of the corporation. His opinion proved to be erroneous; but the corporation was no absolute insurer to its carpenter against accidents resulting from defective work performed by its mason. All the corporation could do was to exercise reasonable and ordinary care in the selection of a competent mason. And the persons interested, including the master-carpenter and the deceased himself, thought that it was safe to go under this arch at the Andrew vs. Stewart Brothers. time the casualty occurred. This action could not be maintained on the evidence adduced by the plaintiff; and the judgment of the court granting the nonsuit was correct. The head-note is a part of this opinion. Judgment affirmed. ANDREW VS. STEWART BROTHERS. 1. Proof that a crop seized under a distress warrant was on the rented premises when the levy was made, is equivalent to proof that it was then in the tenant's possession. 2. Under the act of September 27th, 1883, a special lien for rent arises in favor of the transferee of a rent note when the crop matures, if the transfer was made in writing before such maturity. It makes no difference that the transfer was as collateral security (the note being negotiable), as a transfer for that purpose passes the legal title. 3. A crop produced on any part of the rented premises is liable for the whole rent of the entire premises, and whether produced by the tenant or his subtenant, unless the landlord assented to the subletting or ratified it whilst owner of the rent contract or the transferee of the contract did so after acquiring his title. 4. The note in this case, properly construed, was a contract for the payment of rent only, though as printed it was adapted for use to cover advances on account also. 5. Other small points, on admitting parol evidence to explain the assignment, and on middling cotton as compared with rent cotton, and as to deficient evidence to show value, etc., are overruled as not warranting a new trial. May 16, 1888. Landlord and tenant. Title. Crops. Evidence. Liens. Promissory notes. Contracts. New trial. Before Judge BOYNTON. Newton superior court. September term, 1887. Reported in the decision. JAMES R. ALBERT, for plaintiff in error. CAPERS DICKSON, by brief, contra. |