Reaves v. Columbus Electric & Power Co.

Bell, J. (After stating the foregoing facts.) We know nothing of the scope and terms of the agreement under which Mr. Potts let his servant Horace Goodwin to the defendant power company, except as revealed in the testimony of Goodwin himself. If we [148] did, we might be able to hold, as a matter of law, whether he was to be treated as the servant of Potts or the servant of the defendant at the time and place in question, — that is, whether he was the servant of the defendant until he reached the situs of his general employment on Potts’s farm. He was the general servant of Potts as a farm laborer. It is well settled that “the fact that an employee is the general servant of one employer does not, as matter of law, prevent him from becoming the particular servant of another, who may become liable for his acts. And it is true as a general proposition that when one person lends his servant to another for a particular employment (or hires him), the servant, for anything done in that particular employment, must be dealt with as the servant of the man to whom he is lent (or hired), although he remains the general servant of the person who lent him (or hired him).” 18 R. C. L. 784. The real test by which to determine whether a person was acting as the servant of another at the time of the infliction of an injury by him is to ascertain whether at the particular time when the injury was inflicted he was subject to the other person’s orders and control, and was liable to be discharged from the particular employment for disobedience of orders or misconduct. Brown v. Smith, 86 Ga. 277 (12 S. E. 411, 22 Am. St. Rep. 456). “One person may be taken to have been the servant of another in respect of a given transaction, although he did not occupy that position for all purposes. In order to establish the relationship, it is merely necessary to show that he was a servant as regards the particular piece of work in which he was engaged at the time when he sustained or inflicted the injury complained of. . . The special master is alone liable to third persons for injuries caused by such wrongful acts as the special servant may commit in the course of his employment.” LaBatt on Master & Servant (2d ed.), § 52. The above propositions were applied by this court in Greenberg v. Yarbrough, 26 Ga. App. 544 (106 S. E. 624), wherein it was ruled that “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.” As was said in that case, the principle of law is well defined. Is it applicable in the instant [149] case ? The answer to this question must be determined according to the inference to be drawn from the testimony of the servant himself. While the jury would have been authorized to find from certain parts of his testimony that he was the servant of Potts, they could legitimately have inferred from other parts that he was the servant of the defendant. The testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague or equivocal. Shepard v. Chappell, 29 Ga. App. 6 (2) (113 S. E. 23). This rule, however, is not applicable as against a party in the construction of the testimony of other witnesses introduced by him. While the Supreme Court has said that “when a witness testifies to facts incoherently or inconsistently, that circumstance goes to his credit, and if his testimony be very incoherent or inconsistent, it should be considered with great caution” (Evans v. Lipscomb, 31 Ga. 71 (2)), this rule relates to the province of the jury, and this court cannot say that the testimony of one not a party has no value merely because it is incoherent, inconsistent, or self-contradictory. “It was for the jury to determine whether the testimony of the witness was so vague, indefinite, and uncertain as to be worthless, or whether the testimony — though contradictory in some respects — possessed some degree of probative value.” O’Brien v. Ellarbee, 14 Ga. App. 333 (5) (80 S. E. 864). “The credibility of a witness is a matter to be determined by the jury under proper instructions from the court.” Civil Code (1910), § 5883. See also Holcombe v. State, 5 Ga. App. 47 (6) (62 S. E. 647); Marshall v. Woodbury Banking Co., 8 Ga. App. 221 (68 S. E. 957); Borders v. City of Macon, 18 Ga. App. 333 (2) (89 S. E. 451). This court is without jurisdiction to adjudge that testimony is worthless because of the “witness’s manner of testifying.” Civil Code (1910), § 5732. See Shearman v. Stephens, 30 Ga. App. 509 (4) (118 S. E. 567). It is true that hearsay evidence has no probative value, even if admitted (Eastlick v. Southern Railway Co., 116 Ga. 48, 42 S. E. 499), and consequently true also that where a witness testifies to certain facts upon his direct examination, but upon cross-examination shows that he has answered from hearsay and without any personal knowledge of the facts about which he testified, his testimony should be disregarded (Atlantic Coast Line R. Co. v. Col [150] lins, 13 Ga. App. 759 (1), 79 S. E. 946); compare Evans v. Josephine Mills, 119 Ga. 448 (2), 46 S. E. 674; Evans v. Scofield’s Sons Co., 120 Ga. 961, 48 S. E. 358); but it is furthermore the rule that “where a witness testifies to a fact, the presumption is, in the absence- of anything to the contrary, that he is testifying from his own knowledge.” Shaw v. Jones, 133 Ga. 446 (3) (66 S. E. 240); Hearn v. Red Devil Co., 31 Ga. App. 84 (119 S. E. 469). The testimony of the witness Goodwin does not affirmatively disclose that he was testifying from hearsay; and although in truth he may not have known anything as to whose servant he was, this court cannot say, as a matter of law, that he was not testifying from personal knowledge of the terms of the contract which he may have heard made, or from subsequent conversations between the contracting parties, or from the practice and course of dealing between them with respect to the direction and control of his labor. See New Amsterdam Casualty Co. v. Sumrell, 30 Ga. App. 682 (118 S. E. 786). We conclude that it should not be held, as a matter of law, that Goodwin was not the servant of the defendant at the time and place of the plaintiffs injury, but that the question was one to be determined by the jury. The witness, with more certainty than in some other particulars, testified that he was carrying the second wagon at the orders of representatives of the defendant under whom he worked, one of them either fastening this wagon or having it fastened in the manner complained of. He gave other testimony not quoted in the statement of facts, which, if true, would have shown that the averments of the plaintiff as to negligence were unfounded; but this still did not authorize the granting of a nonsuit, for the reason that the testimony of the plaintiff himself, together with that of other witnesses, would have warranted the inference of negligence as alleged. It is “well settled in this State that a party may contradict his own witness by showing the truth to be different from what the witness testified. Skipper v. State, 59 Ga. 63; Cronan v. Roberts, 65 Ga. 678; McElmurray v. Turner, 86 Ga. 217.” Christian v. Macon Ry. Co., 120 Ga. 314 (2), 317 (47 S. E. 923). “While a party will not be permitted to impeach a witness called by him, [151] by proof of general bad character, or by proof of contradictory statements, unless it appears that he has been entrapped by the witness, he is not bound, by calling the witness, to accept his testimony as true, but may prove by another witness a different state of facts.” Moultrie Repair Co. v. Hill, 120 Ga. 730 (3) (48 S. E. 143). See also Carter v. Carter, 7 Ga. App. 216 (66 S. E. 630). And see Sizer v. Melton, 129 Ga. 143 (3) (4) (58 S. E. 1055). “A jury in arriving at a conclusion upon disputed issues of fact may believe a part of the testimony of a witness or witnesses, and reject another part thereof, it being their duty to ascertain the truth of the case from the opinion they entertain of all the evidence submitted for their consideration.” Sappington v. Bell, 115 Ga. 856 (1) (42 S. E. 233). The plaintiff’s evidence was sufficient for the submission of his case to the jury, and the nonsuit was error. See Steinhauser v. Savannah &c. Ry. Co., 118 Ga. 195 (1) (44 S. E. 800). Nothing herein ruled is in conflict with Coggin v. Central Railroad Co., 62 Ga. 685. Judgment reversed. Jenkins, P. J., and Stephens, J., concur.