Stuart v. Poole

Lumpkin, P. J. Tke only question presented by tke bill of exceptions in tke present case is whether or not tke wages of tke plaintiff in error were exempt from tke process of garnishment, on tke ground that he was a “laborer” within tke meaning of section 4732 of tke Civil Code. Tke case was tried in a justice’s court upon an agreed statement of facts, and a judgment was therein rendered subjecting Stuart’s wages to tke garnishment. He sued out a certiorari, to tke overruling of which he excepted. From tke agreed statement of facts it appeared that he was a “street-railway conductor,” and that kis duties as suck were as follows: “To keep tke car in general order; to couple and uncouple trail cars when used; to keep lights dusted off and in proper condition; to keep the guard-rails of tke car in proper position; to attend to tke trolley and keep it in place; to keep tke seats of tke car. turned; to [819] help passengers on and off the car; to help put the ear back on the track if it gets off, and to help remove all obstructions from the track; to change switches when there are switches, but not to open or close frogs; to get off and flag every railroad crossing; to look out for accidents at the rear of the car.” It further appeared from the agreed statement of facts that: “ The conductor and motorman have joint charge of the car; the conductor gives the order for start.ing and stopping, except that the motorman stops the car of his own motion for passengers who hail the car, or who themselves ring the bell to stop; the conductor collects fares and issues transfers. Asto keeping schedules, rule 52 of the duties of conductors,” as promulgated by the railway company of which Stuart was an employee, “shows that ‘conductors must keep the correct time as .shown by their company’s standard clock. Cars must be run closely to schedule time, and whenever a car is off schedule, the conductor must be prepared to give a reasonable explanation of the cause. Unreliable watches will not serve as an excuse.’ The motorman is also responsible for running the car on schedule time, and the same requirements are made of him as to keeping schedule time.” We are of the opinion that the magistrate reached the wrong •conclusion from this state of facts, and that the superior court erred in not sustaining the certiorari. The test for determining whether or not a given employee is a “laborer” within the meaning of the .above-mentioned section of the code was laid down in the case of Oliver v. Hardware Co., 98 Ga. 249, and is as follows: “If the contract of employment contemplated that the [employee’s] services were to consist mainly of work requiring mental skill, or business capacity, and involving the exercise of his intellectual faculties, rather than work the doing of which properly would depend upon •a mere physical power to perform ordinary manual labor, he would not be a ‘laborer.’ If, on the other hand, the work which the contract required the [employee] to do was, in the main, to be the performance of such labor as that last above indicated, he would be .a ‘laborer.’” Every occupation, however menial, involves the exercise of some degree of sense or judgment; and every calling, however exalted, carries with it the performance of work which par-' takes more or less of the nature of drudgery. In the light of the •decision in the Oliver case and of the cases upon which it was [820] founded, we think the present case argues itself. In our opinion, the agreed statement of facts necessarily conveys the idea that the major portion of the work required of Stuart was of a character depending more " upon a mere physical power to perform manual labor ” than upon the possession by him of "mental skill, or business capacity, . . involving the exercise of his intellectual faculties.” We also think it quite apparent that the greater portion of Stuart’s time must have been occupied in performing labor of the former and not of the latter kind. On the whole, therefore, it is our judgment that he should, under the facts appearing, have been classed as a laborer whose wages were exempt from garnishment. Judgment reversed. All the Justices concurring, except Simmons, C. J., and Gold, J., absent.