2020 Georgia Code
Title 34 - Labor and Industrial Relations
Chapter 7 - Employment Generally; Employer's Liability
Article 2 - Employer's Liability for Injuries Generally
§ 34-7-21. Liability of Employer for Coemployees' Negligence

With the exception of railroad companies, the employer shall not be liable to one employee for injuries arising from the negligence or misconduct of other employees about the same business.

(Code 1863, § 2180; Code 1868, § 2176; Code 1873, § 2202; Code 1882, § 2202; Civil Code 1895, § 2610; Civil Code 1910, § 3129; Code 1933, § 66-304.)

- Liability of principal for injuries to agent by other agents generally, § 10-6-39.

Liability of employer for torts of employee engaged in independent business and not subject to immediate direction and control of employer, § 51-2-4.

- For article, "Sexual Harassment Claims Under Georgia Law," see 6 Ga. St. B. J. 16 (2000).

ANALYSIS

• General Consideration
• Master's Liability
• Fellow Servants
• Vice Principal

General Consideration

In general.

- Cornerstone of the fellow servant rule is that a fellow employee's negligence must be the sole cause of an injury. Alterman v. Jinks, 122 Ga. App. 859, 179 S.E.2d 92 (1970).

Test for determining whether a person is an employee or an independent contractor is not whether the employer did in fact control and direct the employee in the work, but the test is whether the employer had that right under the employment contract. Estes v. G&W Carriers, LLC, 354 Ga. App. 156, 840 S.E.2d 486 (2020).

Fellow servant rule is a species of the assumption of risk. Alterman v. Jinks, 122 Ga. App. 859, 179 S.E.2d 92 (1970).

Fellow servant rule is an exception or departure from the respondeat superior rule. Alterman v. Jinks, 122 Ga. App. 859, 179 S.E.2d 92 (1970).

Master must be free from negligence before the application of the fellow servant doctrine comes into play. Alterman v. Jinks, 122 Ga. App. 859, 179 S.E.2d 92 (1970).

- Both under the laws of this state, and of the United States, the railroad company is liable for an injury caused to one of its servants as the result of the negligence of a fellow servant, while engaged in the performance of the duties of employment. Southern Ry. v. Heaton, 61 Ga. App. 386, 6 S.E.2d 339 (1939).

- General rule is that the fellow servant rule is available as a defense whenever the negligent servant did the act complained of in the servant's capacity of a servant or employee and was not representing the master in the discharge of nondelegable duties. Roberts v. Ethridge, 73 Ga. App. 400, 36 S.E.2d 883 (1946).

Cited in Brush Elec. Light & Power Co. v. Wells, 110 Ga. 192, 35 S.E. 365 (1900); Baxley v. Satilla Mfg. Co., 114 Ga. 720, 40 S.E. 730 (1902); Cedartown Cotton Co. v. Hanson, 118 Ga. 176, 44 S.E. 992 (1903); Colley v. Southern Cotton Oil Co., 120 Ga. 258, 47 S.E. 932 (1904); Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030, 48 S.E. 438 (1904); Lay v. Nashville, Chattanooga & St. Louis Ry., 131 Ga. 345, 62 S.E. 189 (1908); Georgia Coal & Iron Co. v. Bradford, 131 Ga. 289, 62 S.E. 193, 127 Am. St. R. 228 (1908); Roland v. Tift, 131 Ga. 683, 63 S.E. 133, 20 L.R.A. (n.s.) 354 (1908); Stevens v. Bunn, 6 Ga. App. 315, 64 S.E. 1002 (1909); Whitfield v. Louisville & Nashville R.R., 7 Ga. App. 268, 66 S.E. 973 (1910); Fraser v. Smith & Kelly Co., 136 Ga. 18, 70 S.E. 792 (1911); Donaldson v. Marsh Cypress Co., 9 Ga. App. 267, 70 S.E. 1121 (1911); Winn v. Fulton Bag & Cotton Mills, 15 Ga. App. 33, 82 S.E. 586 (1914); Lamb v. Floyd, 148 Ga. 357, 96 S.E. 877, 1 A.L.R. 1172 (1918); Falla v. Pine Granite Co., 22 Ga. App. 651, 97 S.E. 114 (1918); Odum v. Edgar Bros. Co., 25 Ga. App. 144, 103 S.E. 183 (1920); Walters v. Berry Schools, 40 Ga. App. 751, 151 S.E. 544 (1930); Southern Ry. v. Perdue, 171 Ga. 134, 154 S.E. 793 (1930); Salter v. Nugent, 50 Ga. App. 187, 177 S.E. 513 (1934); Gartrell v. Russell, 51 Ga. App. 519, 180 S.E. 860 (1935); Morrison v. Lewis, 58 Ga. App. 677, 199 S.E. 782 (1938); Hopkins v. Barron, 61 Ga. App. 168, 6 S.E.2d 96 (1939); Jackson v. Thompson, 77 Ga. App. 367, 48 S.E.2d 903 (1948); Hamilton Turpentine Co. v. Johnson, 93 Ga. App. 544, 92 S.E.2d 235 (1956); Martin v. Henson, 95 Ga. App. 715, 99 S.E.2d 251 (1957); Lacy v. Ferrence, 117 Ga. App. 139, 159 S.E.2d 479 (1968); Wiley v. Georgia Power Co., 134 Ga. App. 187, 213 S.E.2d 550 (1975).

Master's Liability

Elements of proof.

- It is incumbent upon the injured servant to show the following facts: (1) that the fellow servant was incompetent; (2) that the injury complained of resulted directly or proximately from such incompetency; (3) either (a) that the master knew of such incompetency, or (b) that by the exercise of ordinary care the master could have known of it; (4) that the injured servant did not know of such incompetency; (5) that by the exercise of ordinary care the injured servant could not have known of it; and (6) the servant did not have equal means with the master of acquiring knowledge of such fact. Strickland v. Foughner, 68 Ga. App. 805, 12 S.E.2d 371 (1940).

Master is liable if the master selects an incompetent servant and there is a master-servant relationship. Alterman v. Jinks, 122 Ga. App. 859, 179 S.E.2d 92 (1970).

- Master is not bound to indemnify one servant for injuries caused by the negligence of another servant in the same common employment as the injured servant, unless the negligent servant was the master's representative. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206, 45 S.E.2d 280 (1947).

- Acts of a person authorized by the master to perform a duty the master owes to a servant are the acts of the master personally insofar as they pertain to that duty; and when the servant is injured by reason of a failure to perform it, the master cannot escape liability by setting up that the duty devolved upon a fellow servant of the person injured. Corcoran v. Merchants & Miners Transp. Co., 1 Ga. App. 741, 57 S.E. 962 (1907), later appeal, 4 Ga. App. 654, 62 S.E. 130 (1908).

- While the master is not ordinarily liable for the negligence of a fellow servant, the master is liable for the master's own negligence or that of the master's vice principal acting for the master. Maxwell v. Harrell, 115 Ga. App. 97, 153 S.E.2d 653 (1967).

Fellow servant doctrine does not protect an employer from being charged with direct liability for its own negligence in hiring or retaining an employee with knowledge that the employee's presence or the manner in which the employee performs the duties poses a danger to co-employees. Lindsey v. Winn Dixie Stores, Inc., 186 Ga. App. 867, 368 S.E.2d 813 (1988); Hardee's Food Sys. v. Evans, 197 Ga. App. 5, 397 S.E.2d 474 (1990).

- When safe appliances are furnished, and an injury to a servant is plainly attributable solely to the negligence of fellow servants in the manner of using them or the servant failing to use them, the master is not chargeable therewith. Henderson v. Ocean S.S. Co., 15 Ga. App. 790, 84 S.E. 230 (1915).

- Master is not liable for the negligence of the master's superintendent and foreperson, when the alleged negligence of the superintendent and foreperson did not consist in a violation or omission of any nonassignable duty of the master, or the issuance of any command given as such a vice principal, but lay solely in the master's removal of the master's hands, without warning to the servant, from a ladder which the master was holding in place and on which the servant had mounted, and in thus causing the ladder to fall. Haynie v. Foremost Dairies, Inc., 54 Ga. App. 369, 187 S.E. 907 (1936).

- Legal liability results only from a breach of legal duty which implies the existence of some legal relationship. One who, without any employment whatever, but at the request of a servant who has no authority to employ other servants, voluntarily undertakes to perform service for a master is a mere volunteer, and the master does not owe the servant any duty, except not to injure the servant willfully and wantonly after the servant's peril is discovered. Barber v. Rich's, Inc., 92 Ga. App. 880, 90 S.E.2d 666 (1955).

When the defendant's servant had no authority to employ the plaintiff-customer to assist servant in the manner alleged, the plaintiff became the servant of the defendant's servant when the plaintiff assisted the servant of the master and since in this capacity the plaintiff was not the servant or invitee of the defendant, plaintiff could not recover for injuries received. Barber v. Rich's, Inc., 92 Ga. App. 880, 90 S.E.2d 666 (1955).

- If a plaintiff knew that the plaintiff's fellow servants, about whose conduct the plaintiff is complaining, were retained after the plaintiff had notified the employer of their incompetence, the plaintiff should not have engaged in the same service with them any more than the plaintiff should work with a defective tool given to the plaintiff by an employer. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206, 45 S.E.2d 280 (1947).

- Grant of summary judgment to a company in a personal injury action was upheld because the undisputed record evidence showed that the company hired the couple generally to drive a tractor trailer, which the company owned and had authority over, thus, the wife's exclusive remedy for injuries sustained in an accident was workers' compensation benefits, regardless of the fact that the company issued its workers IRS Form 1099 (rather than Form W-2). Estes v. G&W Carriers, LLC, 354 Ga. App. 156, 840 S.E.2d 486 (2020).

Fellow Servants

Definition of fellow servants.

- Two persons subject to control and direction by the same general master in the same common object are fellow servants, and if one is injured by the negligence of the other, the master, save when by statute otherwise provided, is not liable, although the negligent servant has the right to direct the work of the other. Hamby v. Union Paper-Mills Co., 110 Ga. 1, 35 S.E. 297 (1900).

Employees of a common master, engaged in labor for the furtherance of the general purpose of the business in which they contract to serve, are fellow servants within the purview of this section. Georgia Coal & Iron Co. v. Bradford, 131 Ga. 289, 62 S.E. 193, 127 Am. St. R. 228 (1908); Foundation Co. v. Gobay, 24 Ga. App. 494, 101 S.E. 392 (1919).

In determining whether certain servants are fellow servants it is necessary to decide whether the servants were "about the same business," or were "engaged in the common pursuit." Holliday v. Merchants & Miners Transp. Co., 161 Ga. 949, 132 S.E. 210 (1926).

- Convicts, whose service was compulsory, were not fellow servants within the meaning of this section. Hall County v. Loggins, 110 Ga. App. 432, 138 S.E.2d 699 (1964).

- When a petition shows that the sole proximate cause of the alleged injuries to the plaintiff's spouse was the negligence of a fellow servant, it is not error to sustain the general demurrer (now motion to dismiss) of the defendant corporation-master to dismiss the action as to it. Bray v. Westinghouse Elec. Corp., 102 Ga. App. 803, 117 S.E.2d 919 (1960).

Vice Principal

Determination of vice principal by duties.

- It is not the grade, title, or position in the service that determines whether a person is the vice principal of the master or a fellow servant, but it is the duty which the person performs toward the other servants. Moore v. Dublin Cotton Mills, 127 Ga. 609, 56 S.E. 839, 10 L.R.A. (n.s.) 772 (1907); Haynie v. Foremost Dairies, Inc., 54 Ga. App. 369, 187 S.E. 907 (1936).

Term "vice principal," as used in the fellow servant law, has been defined as including any servant who represents the master in the discharge of those personal or absolute duties which every master owes to the master's servants, such duties being often referred to as the nonassignable duties of a master. Moore v. Dublin Cotton Mills, 127 Ga. 609, 56 S.E. 839, 10 L.R.A. (n.s.) 772 (1907).

Workman engaged on the same job with others, although the workman may have the direction of it, is not a vice principal of the master, but is a mere fellow servant, unless the workman is performing nondelegable, or nonassignable, duties of the master and therefore a servant injured by the workman could recover against their employer. Miller v. Fulton, 111 Ga. App. 849, 143 S.E.2d 578 (1965).

- Workman, although the workman may direct labor performed, "is not a vice principal of the master, but stands on the footing of a mere fellow servant." Moore v. Ross, 41 Ga. App. 509, 153 S.E. 575 (1930).

- Workman engaged in the same job with two or three others, and having the direction of it, is not a general superintendent of a corporation so as to bind it as such, but stands on the footing of a mere fellow servant. McDonald v. Eagle & Phenix Mfg. Co., 67 Ga. 761 (1881); Shepherd v. Southern Pine Co., 118 Ga. 292, 45 S.E. 220 (1903).

- In Moseley v. Schofield's Sons Co., 123 Ga. 197, 51 S.E. 309 (1905), it was held that one who had authority to employ laborers, and was in charge of the work is a vice principal. Ingram v. Hilton & Dodge Lumber Co., 125 Ga. 658, 54 S.E. 648 (1906).

- Under the allegations as made in the petition in International Cotton Mills v. Webb, 22 Ga. App. 309, 96 S.E. 16 (1918), the one who furnishes the alleged defective and unsafe instrumentality to the employee, and who assured the employee that it might be safely used, occupied the position of vice principal to the master. Stevens v. Bibb Mfg. Co., 16 Ga. App. 793, 86 S.E. 445 (1915).

- Whenever the vice principal of a master in fact enters upon the discharge of duties which relate solely to the ordinary work and functions of a servant, the vice principal will, independently of the title or position, be presumed to have assumed the status of a mere servant, with the result that when the vice principal thus acts the master is not liable for the vice principal's acts of negligence whereby another servant is injured. Haynie v. Foremost Dairies, Inc., 54 Ga. App. 369, 187 S.E. 907 (1936).

- While doing a servant's work engaged solely in executing the ordinary details of labor in connection with another servant, a foreperson who in other respects stands in the place of the master is a fellow servant, and the foreperson's negligence therein will not render the master liable to the other servant, except when the master is a railroad company. McGovern v. Columbus Mfg. Co., 80 Ga. 227, 5 S.E. 492 (1887); Wallace v. Kimball Co., 20 Ga. App. 617, 93 S.E. 260 (1917).

- Fellow servant without the master's knowledge cannot, by an assumption of authority, convert oneself into a vice principal or alter ego of the master. Hilton & Dodge Lumber Co. v. Ingram, 119 Ga. 652, 46 S.E. 895, 100 Am. St. R. 204 (1904); Chenall v. Palmer Brick Co., 125 Ga. 671, 54 S.E. 663 (1906).

RESEARCH REFERENCES

Am. Jur. 2d.

- 27 Am. Jur. 2d, Employment Relationship, § 322 et seq.

- 30 C.J.S., Employers' Liability for Injuries to employees, § 214 et seq.

- Liability of master to common-law employee for injury inflicted by instrumentality of master used by another employee in sport, 30 A.L.R. 693.

Master's duty to servant to prevent continuance of dangerous sports, 40 A.L.R. 1333.

Liability of employer for consequences of vaccination or other bodily operation to which employee is subjected, 62 A.L.R. 195.

Liability of master for injuries inflicted on one servant by another by use, maliciously or in sport, of compressed-air device, 62 A.L.R. 1433.

Workmen's compensation: rights and remedies where employee was injured by a third person's negligence, 67 A.L.R. 249; 88 A.L.R. 665; 106 A.L.R. 1040.

Assumption of risk of overstrain consequent upon failure of other employee to lift his share, 74 A.L.R. 157.

Servant's liability to master for negligent or other wrongful injury to person or property of master or of third person for which master is responsible, 110 A.L.R. 831.

Right of employer sued for tort of employee to implead the latter, 5 A.L.R.3d 871.

Subrogation of employer's liability insurer to employer's right of indemnity against negligent employee, 53 A.L.R.3d 631.