No private cause of action.

- Penal statutes in Georgia, such as O.C.G.A. § 34-1-2, do not give rise to a private cause of action for the conduct proscribed. Calhoun v. Federal Nat'l Mtg. Ass'n, 823 F.2d 451 (11th Cir. 1987), cert. denied, 484 U.S. 1078, 108 S. Ct. 1058, 98 L. Ed. 2d 1019 (1988); Suber v. Bulloch County Bd. of Educ., 722 F. Supp. 736 (S.D. Ga. 1989).

At-will employee may not sue in tort under O.C.G.A. § 51-1-6 or O.C.G.A. § 51-1-8 for wrongful discharge based upon age discrimination. Reilly v. Alcan Aluminum Corp., 272 Ga. 279, 528 S.E.2d 238 (2000).

Provisions of O.C.G.A. §§ 51-1-6 and51-1-8 do not create a civil action for age discrimination for an employee-at-will based upon a violation of either O.C.G.A. § 34-1-2 or the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Reilly v. Alcan Aluminum Corp., 221 F.3d 1170 (11th Cir. 2000).

Cited in Spencer v. Moore Bus. Forms, Inc., 87 F.R.D. 118 (N.D. Ga. 1980); Bruce v. S & H Riggers & Erectors, Inc., 732 F. Supp. 1172 (N.D. Ga. 1990).

Am. Jur. 2d.

- 45A Am. Jur. 2d, Job Discrimination, §§ 18, 19. 45B Am. Jur. 2d, Job Discrimination, §§ 703, 1225 et seq.

Discrimination - Under Age Discrimination in Employment Act, 10 POF2d 1.

Age as Bona Fide Occupational Qualification Under ADEA, 15 POF2d 481.

Proof of Discrimination Under Age Discrimination in Employment Act, 44 POF3d 79.

Contingent Worker's Protection Under Federal Anti-Discrimination Statutes, 57 POF3d 75.

Age Discrimination in Employment under ADEA, 75 Am. Jur. Trials 363.

C.J.S.

- 14A C.J.S., Civil Rights, § 287 et seq. 51 C.J.S., Labor Relations, § 10.

ALR.

- Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions, 85 A.L.R.3d 351.

Liability of employer, supervisor, or manager for intentionally or recklessly causing employee emotional distress, 52 A.L.R.4th 853.

Award of front pay under state job discrimination statutes, 74 A.L.R.4th 746.

Application of state law to age discrimination in employment, 51 A.L.R.5th 1.

Availability and scope of punitive damages under state employment discrimination law, 81 A.L.R.5th 367.

Individual liability of supervisors, managers, officers or co-employees for discriminatory actions under state Civil Rights Act, 83 A.L.R.5th 1.

Circumstances which warrant finding of constructive discharge in cases under Age Discrimination in Employment Act (29 USC § 621 et seq.), 93 A.L.R. Fed. 10.

Who, other than specifically excluded persons, is "employee" under § 4(a)(1) of Age Discrimination in Employment Act of 1967 (29 U.S.C.S. § 623(a)(1)), 125 A.L.R. Fed. 273.

Employee's retention of benefits received in consideration of promise not to enforce claims under Age Discrimination in Employment Act as ratification of otherwise invalid or voidable waiver under § 7(f)(1) of act (29 U.S.C.S. § 626(f)(1)), 128 A.L.R. Fed. 577.

Application of Age Discrimination in Employment Act (29 U.S.C.S. § 621 et seq.) to religious institutions, 136 A.L.R. Fed 487.

Who is "employer" within meaning of Age Discrimination in Employment Act of 1967 (29 U.S.C.S. § 621 et seq.), 137 A.L.R. Fed 551.

Award of compensatory damages under 42 U.S.C.A. § 1981a for violation of Title VII of Civil Rights Act of 1964, 154 A.L.R. Fed. 347.

What constitutes direct evidence of age discrimination in action under age discrimination in employment act (29 U.S.C.A. § 621 et seq.) - Post-Price Waterhouse cases, 155 A.L.R. Fed. 283.

Propriety of treating separate entities as one for determining number of employees required by Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e(b)) for action against "employer", 160 A.L.R. Fed. 441.

What constitutes willful violation under age discrimination in employment act (29 U.S.C.A. § 626 et seq.) entitling victim to liquidate damages, 165 A.L.R. Fed. 1

Disparate impact claims under Age Discrimination Act of 1967, 29 U.S.C.A. § 621 et seq., 186 A.L.R. Fed. 1

Discrimination against younger persons in favor of older persons (reverse age discrimination), 6 A.L.R.7th 7.

Employer failed to comply with statute.

- Attendance rules in an employer's handbook did not comply with O.C.G.A. § 34-1-3 because the rules stated somewhat confusingly that an employee was only protected for work absences due to a court required appearance, which was defined as: an employee was not a named party in the proceedings, and an employee was accompanying a minor child or stepchild who has been subpoenaed to testify as a witness; the statute's protection is not limited to employees accompanying a minor child subpoenaed to testify. Thomas v. HL-A Co., 313 Ga. App. 94, 720 S.E.2d 648 (2011).

Juvenile court proceedings.

- As it was undisputed that the particular reason the employee was terminated was that the employee was absent from work while attending juvenile court proceedings, that termination was in violation of O.C.G.A. § 34-1-3. Glover v. Scott, 210 Ga. App. 25, 435 S.E.2d 250 (1993).

Sufficient evidence of retaliation.

- Trial court erred in granting a former employer's motion for summary judgment in a former employee's action alleging that the employer improperly terminated the employee in violation of O.C.G.A. § 34-1-3(a) for attending a juvenile court proceeding because the employee presented competent circumstantial evidence from which a jury could infer that the employee was fired in retaliation for arguing to management that the employee was statutorily entitled to be excused since the employee was attending court pursuant to a witness subpoena; the employer failed to come forward with competent evidence showing a proper reason for the termination, and the subpoena commanding the employee to appear in court was facially valid. Thomas v. HL-A Co., 313 Ga. App. 94, 720 S.E.2d 648 (2011).

Cited in In re Hadaway, 290 Ga. App. 453, 659 S.E.2d 863 (2008).

Criminal offense not created.

- O.C.G.A. § 34-1-3 does not create a separate criminal offense; however, a violation can be grounds for contempt of court. 1995 Op. Att'y Gen. No. 95-13.

Employee is entitled to pay while serving jury duty.

- An employee is entitled to be paid the employee's salary while missing work to serve on jury duty. 1989 Op. Att'y Gen. No. 89-55.

Judicial proceedings in other states.

- "Judicial proceeding" as used in subsection (a) of O.C.G.A. § 34-1-3 includes judicial proceedings in other states; therefore, a person employed in Georgia who has been penalized for being absent from work for the purpose of attending a judicial proceeding in another state in response to a jury summons from a court in that other state has a civil cause of action against the employer. 1995 Op. Att'y Gen. No. 95-13.

ALR.

- Protection of debtor from acts of discrimination by private entity under § 525(b) of Bankruptcy Code of 1978 (11 USCS § 525(b)), 105 A.L.R. Fed. 555.

Am. Jur. 2d.

- 27 Am. Jur. 2d, Employment Relationship, §§ 261 et seq., 323 et seq.

C.J.S.

- 30 C.J.S. Employers' Liability for Injuries to Employees, §§ 55 et seq., 214 et seq.

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, §§ 1, 3, 7.

C.J.S.

- 51A C.J.S., Labor Relations, § 692. 67 C.J.S., Officers and Public Employees, § 18. 81A C.J.S., States, § 264.

Am. Jur. 2d.

- 48 Am. Jur. 2d, Labor and Labor Relations, § 15 et seq. 27 Am. Jur. 2d, Employment Relationship, § 1 et seq.

C.J.S.

- 51 C.J.S., Labor Relations, § 65.

ALR.

- When has employer "repeatedly" violated Occupational Safety and Health Act within meaning of § 17(a) of Act (29 U.S.C.A. § 666(a)), 151 A.L.R. Fed. 1

Provision for removal of Commissioner unconstitutional.

- Subsection (d) of O.C.G.A. § 34-2-3 authorizing proceedings to remove the Commissioner of Labor for neglect of duty or malfeasance in office is unconstitutional. 1983 Op. Att'y Gen. No. 83-68.

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, §§ 1 et seq., 14 et seq., 137 et seq., 169 et seq.

C.J.S.

- 67 C.J.S., Officers and Public Employees, §§ 2 et seq., 47, 227 et seq., 275 et seq. 81A C.J.S., States, § 264.

ALR.

- Conclusiveness of governor's decision in removing or suspending officers, 92 A.L.R. 998.

Commissioner's power to remove personnel.

- The provision in Ga. L. 1937, p. 230, § 8 (see now O.C.G.A. § 34-2-4(b)) providing for the commissioner's removing from office any officer or employee in the department has been repealed by the former Merit System Act. 1945-47 Op. Att'y Gen. p. 355.

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, §§ 19, 169 et seq., 173 et seq., 241 et seq.

C.J.S.

- 67 C.J.S., Officers and Public Employees, §§ 17, 228 et seq.

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, § 231.

Am. Jur. 2d.

- 27 Am. Jur. 2d, Employment Agencies, §§ 3, 8. 63C Am. Jur. 2d, Public Officers and Employees, § 241 et seq.

C.J.S.

- 51 C.J.S., Labor Relations, § 45. 51B C.J.S., Labor Relations, § 1071. 67 C.J.S., Officers and Public Employees, §§ 8, 9.

ALR.

- Collective labor agreements, 95 A.L.R. 10.

Specific performance or injunction as proper remedy for breach of collective bargaining agreement, 156 A.L.R. 652.

Closed shops and closed unions, 160 A.L.R. 918.

Construction and effect of termination and automatic renewal provisions in collective bargaining agreements, 17 A.L.R.2d 754.

Right of individual employee to enforce collective labor agreement against employer, 18 A.L.R.2d 352.

Construction and effect of vacation pay clause in collective labor agreement, 30 A.L.R.2d 351.

Enforcement of labor board's order against employer's successors, assigns, or the like, 46 A.L.R.2d 592.

Construction and application of provisions of general arbitration statutes excluding from their operation contracts for labor or personal services, 64 A.L.R.2d 1336.

Vacation pay rights of employee not hired under collective labor agreement, 33 A.L.R.4th 264.

Am. Jur. 2d.

- 2 Am. Jur. 2d, Administrative Law, § 55 et seq.

C.J.S.

- 73 C.J.S., Public Administrative Law and Procedure, §§ 217, 218.

Employer, not union, obligated to provide safe workplace.

- Common law places the duty to provide a safe workplace on an employer not on a union. By O.C.G.A. § 34-2-10, it is also true in Georgia. Skipper v. Hoff & Assocs., 684 F. Supp. 707 (S.D. Ga. 1987).

Master is to make effort to furnish safe place.

- Fixed standard of the law that the master shall furnish a safe place for the servant to work does not impose an absolute duty to furnish a safe place, but the duty is placed upon the master to make an effort to do so. Smith v. Ammons, 228 Ga. 855, 188 S.E.2d 866 (1972).

Master is held to only ordinary care in furnishing servant reasonably safe place to work. Smith v. Ammons, 228 Ga. 855, 188 S.E.2d 866 (1972).

Jury charge on ordinary care.

- It is a misdirection to charge the jury in language the effect of which is to subject the master to more extensive obligations than those indicated by the phrase "ordinary care" or its equivalents. Smith v. Ammons, 228 Ga. 855, 188 S.E.2d 866 (1972).

Claim brought in employment discrimination case.

- The district court adopted the magistrate judge's recommendation in a case brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C.S. § 2000e et seq., in which (1) an employee alleged tangible employment action sexual harassment, a sexually hostile work environment, retaliation, and state law claims; (2) a magistrate judge found that an employee's claim for negligent failure to provide a safe working environment arose out of O.C.G.A. § 34-2-10(a); (3) the magistrate judge noted that the employee had provided no citation to any case law that permitted such a claim to be raised on the facts in the present case; and (4) the employee had not filed any objection to the magistrate judge's recommendation that the claim be dismissed. Orquiola v. Nat'l City Mortg. Co., 510 F. Supp. 2d 1134 (N.D. Ga. Jan. 16, 2007).

Employer not responsible for an employee's suicide.

- Trial court properly granted summary judgment to an employer because the evidence failed to show that the employer was responsible for creating a situation which led to an employee's suicide; therefore, the employer had no duty to make a reasonable effort to render aide for the employee's emotional well-being and avoid any further harm. When a regional manager for the employer went to the office where the employee worked to investigate fictitious loans which were discovered in an audit, the employee, who was alleged to have participated in the loans, talked to the manager about the situation, asked if the employee could step outside to smoke a cigarette and make a phone call, left the premises, drove home, and committed suicide. McCrary v. Middle Ga. Mgmt. Servs., 315 Ga. App. 247, 726 S.E.2d 740 (2012).

Cited in Horton v. Ammons, 125 Ga. App. 69, 186 S.E.2d 469 (1971); Sams v. United Food & Com. Workers Int'l Union, 866 F.2d 1380 (11th Cir. 1989); Englehart v. Oki Am., Inc., 209 Ga. App. 151, 433 S.E.2d 331 (1993).

Am. Jur. 2d.

- 27 Am. Jur. 2d, Employment Relationship, §§ 179 et seq., 239. 61 Am. Jur. 2d, Plant and Job Safety - OSHA and State Laws, § 1 et seq.

ALR.

- Duty of master providing machine of standard make and in common use to equip same with safety device or guard, 36 A.L.R. 1477.

Liability of contractee and contractor inter se with respect to injuries sustained while the stipulated work is in course of performance, 44 A.L.R. 891.

Duty of employer to furnish tools or appliances to be used in effecting rescues, 50 A.L.R. 372.

Duty of owner of premises to furnish independent contractor or his employee a safe place of work, where contract is for repairs, 31 A.L.R.2d 1375.

Liability of master for injury or death of servant on master's premises where injury occurred outside working hours, 76 A.L.R.2d 1215.

Shipowner's liability for injury caused to seaman or longshoreman by cargo or its stowage, 90 A.L.R.2d 710.

Employer's liability to employee for failure to provide work environment free from tobacco smoke, 63 A.L.R.4th 1021.

Tort liability for window washer's injury or death, 69 A.L.R.4th 207.

Liability for retaliation against at-will employee for public complaints or efforts relating to health or safety, 75 A.L.R.4th 13.

When has employer "repeatedly" violated Occupational Safety and Health Act within meaning of § 17(a) of Act (29 U.S.C.A. § 666(a)), 151 A.L.R. Fed. 1

What constitutes "willful" violation for purposes of § 17(a) or (e) of Occupational Safety and Health Act of 1970 (29 U.S.C.A. § 666(a) or § 666(e)), 161 A.L.R. Fed. 561.

Am. Jur. 2d.

- 48B Am. Jur. 2d, Labor and Labor Relations, § 3168 et seq.

C.J.S.

- 51B C.J.S., Labor Relations, §§ 1221 et seq., 1376, 1377.

ALR.

- Defamation: loss of employer's qualified privilege to publish employee's work record or qualifications, 24 A.L.R.4th 144.

Validity and construction of statute giving employee the right to review and comment upon personnel record maintained by the employer, 64 A.L.R.4th 619.

Am. Jur. 2d.

- 2 Am. Jur. 2d, Administrative Law, § 6 et seq.

C.J.S.

- 73A C.J.S., Public Administrative Law and Procedure, § 575 et seq.

ALR.

- Enforcement of labor board's order against employer's successors, assigns, or the like, 46 A.L.R.2d 592.

Employer's false statements do not support at-will employee's wrongful discharge claim.

- Although a discharged at-will city employee's claims that the employer falsified the separation notice and conspired to deceive the Department of Labor for purposes of denying the employee unemployment compensation benefits could possibly have implicated the criminal provisions of O.C.G.A. §§ 34-2-13(b) and34-8-256(b), there was nothing in those statutes that authorized a wrongful discharge claim on that basis. Reid v. City of Albany, 276 Ga. App. 171, 622 S.E.2d 875 (2005).

Dismissal of charges against person completing program.

- If an indictment or accusation has been filed against a person who successfully completes a pretrial diversion program, consent of the court is required before the criminal charge can be dismissed. If the person completes the pretrial diversion program prior to the filing of an indictment or accusation, consent of the court is not required. 1988 Op. Att'y Gen. No. U88-25.

Legislature intended to remedy unreasonable hours.

- The evil sought to be remedied by the legislature was the unreasonable hours of service of employees working in cotton and woolen manufacturing establishments. 1945-47 Op. Att'y Gen. p. 354.

This section could not be of force in industry engaged in interstate commerce, since subsequent federal statutes have been enacted which in law supersede state statutes. 1945-47 Op. Att'y Gen. p. 354.

Application of section.

- Whether workers and fixers in textile factories are within the maximum hours provisions of the state law depends upon whether their work is a necessary part of the day's operation, and not merely incidental thereto. 1945-47 Op. Att'y Gen. p. 354.

Am. Jur. 2d.

- 48B Am. Jur. 2d, Labor and Labor Relations, §§ 2925, 2926.

ALR.

- What employers are within "hours of labor" statutes, 16 A.L.R. 537.

Constitutionality of statutes limiting hours of labor in private industry, 90 A.L.R. 814.

Waiver of statutory right to minimum wage or benefit of regulation as to hours of labor, 102 A.L.R. 842; 129 A.L.R. 1145.

Am. Jur. 2d.

- 17A Am. Jur. 2d, Contracts, §§ 162, 229 et seq. 48B Am. Jur. 2d, Labor and Labor Relations, § 3034 et seq.

C.J.S.

- 17A C.J.S., Contracts, § 261 et seq.

Am. Jur. 2d.

- 1 Am. Jur. 2d, Actions, § 114 et seq. 36 Am. Jur. 2d, Forfeitures and Penalties, § 75.

C.J.S.

- 1A C.J.S., Actions, § 31 et seq. 36A C.J.S., Fines, §§ 2, 19. 51B C.J.S., Labor Relations, § 1221 et seq. 70 C.J.S., Penalties, § 23.

Am. Jur. 2d.

- 48B Am. Jur. 2d, Labor and Labor Relations, §§ 2980 et seq., 2996.

ALR.

- Increase, or promise of increase, or withholding of increase, of wages as unfair labor practice under National Labor Relations Act, 137 A.L.R. Fed 333.

Who is "employee employed in agriculture" and therefore exempt from overtime provisions of Fair Labor Standards Act by § 13 (b)(12) of Act (29 U.S.C.A. § 213(b)(12)), 162 A.L.R. Fed. 575.

C.J.S.

- 51B C.J.S., Labor Relations, §§ 1229, 1380 et seq.

Ordinance strengthening minimum wage law.

- There is no unconstitutional conflict between the state minimum wage law as codified in this section and a city ordinance, which requires payment of the prescribed Davis-Bacon Act wage scale in construction projects in excess of $10,000.00, when the ordinance does not detract from or hinder the operation of that section, but rather it augments and strengthens it. City of Atlanta v. Associated Bldrs. & Contractors, 240 Ga. 655, 242 S.E.2d 139 (1978).

Employee not "covered".

- Employee that fell under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., exemption was not effectively "covered" by the Act for purposes of O.C.G.A. § 34-4-3(c) analysis, thereby prohibiting that employee from receiving minimum wage compensation under the Georgia Minimum Wage Law (GMWL), O.C.G.A. § 34-4-1 et seq. Anderson v. Southern Home Care Services, Inc., 298 Ga. 175, 780 S.E.2d 339 (2015).

Individual whose employment consisted of providing in-home personal support services was not prohibited from receiving minimum wage compensation under the Georgia Minimum Wage Law, O.C.G.A. § 34-4-1, et seq., pursuant to the "domestic employees" exception articulated in O.C.G.A. § 34-4-3(b)(3). Anderson v. Southern Home Care Services, Inc., 298 Ga. 175, 780 S.E.2d 339 (2015).

Cited in City of Atlanta v. Associated Bldrs. & Contractors, 143 Ga. App. 115, 237 S.E.2d 601 (1977).

Am. Jur. 2d.

- 48B Am. Jur. 2d, Labor and Labor Relations, §§ 2741, 2960.

C.J.S.

- 51B C.J.S., Labor Relations, §§ 1218 et seq., 1234 et seq., 1302 et seq.

ALR.

- Waiver of statutory right to minimum wage or benefit of regulation as to hours of labor, 102 A.L.R. 842; 129 A.L.R. 1145.

Employee's or agent's acceptance of bonus, gratuity, or other personal benefit from one with whom he deals on employer's or principal's account as affecting his right to recover wages, salary, or commissions, 102 A.L.R. 1115.

Waiver or loss of statutory right to minimum wage or benefit of regulation as to hours of labor, 128 A.L.R. 1145.

Validity of statute, or administrative regulation thereunder, which in effect guarantees to part-time employees minimum wages regardless of the time of their actual employment, 143 A.L.R. 1086.

Validity of statute or regulation in respect of tips, 147 A.L.R. 1039.

Nonprofit charitable institutions as within operation of labor statutes, 26 A.L.R.2d 1020.

Validity of minimum wage statutes relating to private employment, 39 A.L.R.2d 740.

Who is employed in "professional capacity" within exemptions from minimum wage and maximum hours provisions of Fair Labor Standards Act, 72 A.L.R.2d 1156, 77 A.L.R. Fed. 681.

Who is executive, administrator, supervisor, or the like, under exemption for such employees from state minimum wage and overtime pay statutes, 85 A.L.R.4th 519.

Who is employed in "executive capacity" within exemption, under 29 USCS § 213(a)(l), from minimum wage and maximum hours provisions of Fair Labor Standards Act (29 USCS § 201 et seq.), 131 A.L.R. Fed. 1

Who is "employee employed in agriculture" and therefore exempt from overtime provisions of Fair Labor Standards Act by § 13 (b)(12) of Act (29 U.S.C.A. § 213(b)(12)), 162 A.L.R. Fed. 575.

Tips as wages for purposes of state wage laws, 61 A.L.R. 6th 61.

Am. Jur. 2d.

- 27 Am. Jur. 2d, Employment Relationship, § 68 et seq.

C.J.S.

- 63 C.J.S., Municipal Corporations, § 863 et seq.

Am. Jur. 2d.

- 48B Am. Jur. 2d, Labor and Labor Relations, § 3168 et seq.

C.J.S.

- 51A C.J.S., Labor Relations, §§ 833, 834. 51B C.J.S., Labor Relations, § 1376 et seq.

Arbitration.

- Under the Supremacy Clause, § 2 of the Federal Arbitration Act, 9 U.S.C.A. § 2, pre-empts O.C.G.A. § 34-4-6 and the employee employed under contract requiring arbitration of any claims or disputes cannot bring action under the Georgia statute for unpaid wages. Haluska v. RAF Fin. Corp., 875 F. Supp. 825 (N.D. Ga. 1994).

Cited in Equitable Life Assurance Soc'y of United States v. Studenic, 77 F.3d 412 (11th Cir. 1996).

Am. Jur. 2d.

- 48B Am. Jur. 2d, Labor and Labor Relations, § 3220.

C.J.S.

- 51B C.J.S., Labor Relations, § 1413 et seq.

ALR.

- Validity of statutory provision for attorney's fees, 11 A.L.R. 884; 90 A.L.R. 530.

Construction and application of statute providing for attorney's fees in action to recover for wages, 115 A.L.R. 250.

Right of employee of public contractor to maintain action against latter based upon statutory obligation as to rate of wages or upon provisions in that regard in the contract between contractor and the public, 144 A.L.R. 1035.

Right to recover under Fair Labor Standards Act minimum wages, compensation for overtime, or liquidated damages for nonpayment thereof as affected by waiver, release, compromise, offer of compromise, tender, or full payment, 167 A.L.R. 218.

Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500; 48 A.L.R.4th 1094.

Validity, and applicability to causes of action not already barred, of a statute enlarging limitation period, 79 A.L.R.2d 1080.

What constitutes "trial," "final trial," or "final hearing" under statute authorizing allowance of attorneys' fees as costs on such proceeding, 100 A.L.R.2d 397.

Settlement negotiations as estopping reliance on statute of limitations, 39 A.L.R.3d 127.

Validity of statute allowing attorney's fee to successful claimant but not to defendant, or vice-versa, 73 A.L.R.3d 515.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

Applicability.

- Because a former employee alleged sexual harassment under O.C.G.A. § 34-5-1 by a manager, who made sexual overtures to the employee, the defendants were granted summary judgment because § 34-5-1 offered relief only for sex discrimination regarding wage practices. Johnson v. Shoney's, Inc., F. Supp. 2d (M.D. Ga. Aug. 18, 2005).

Am. Jur. 2d.

- 45A Am. Jur. 2d, Job Discrimination, §§ 134 et seq., 661, 662.

C.J.S.

- 14 C.J.S., Civil Rights, §§ 19 et seq., 72, 79, 103, 104, 121.

ALR.

- Constitutionally of "civil rights" legislation by state, 49 A.L.R. 505.

Recovery of damages for emotional distress resulting from discrimination because of sex or marital status, 61 A.L.R.3d 944.

Application of state law to sex discrimination in employment, 87 A.L.R.3d 93.

What constitutes employment discrimination on the basis of "marital status" for purposes of state civil rights laws, 44 A.L.R.4th 1044.

Validity, construction, and application of state enactment, order, or regulation expressly prohibiting sexual orientation discrimination, 82 A.L.R.5th 1.

Individual liability of supervisors, managers, officers or co-employees for discriminatory actions under state Civil Rights Act, 83 A.L.R.5th 1.

When is supervisor's or co-employee's hostile environment sexual harassment imputable to employer under state law, 94 A.L.R.5th 1.

Discrimination against pregnant employee as violation of state fair employment laws, 99 A.L.R.5th 1.

Application of state statutes regulating claims of hostile work environment or sexual harassment based on sexual, romantic, or paramour favoritism, 92 A.L.R.6th 121.

Discrimination on basis of person's transsexual status as violation of state or local law, 96 A.L.R.6th 189.

Conduct of plaintiff as defense in action for employment discrimination based on sexual harassment under federal civil rights statutes, 145 A.L.R. Fed. 459.

What constitutes reverse or majority gender discrimination against males violative of federal constitution or statutes - public employment cases, 153 A.L.R. Fed. 609.

Award of compensatory damages under 42 U.S.C.A. § 1981a for violation of Title VII of Civil Rights Act of 1964, 154 A.L.R. Fed. 347.

Propriety of treating separate entities as one for determining number of employees required by Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e(b)) for action against "employer", 160 A.L.R. Fed. 441.

Liability of employer, under Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e et seq.) for sexual harassment of employee by customer, client, or patron, 163 A.L.R. Fed. 445.

Discrimination on basis of person's transgender or transsexual status as violation of federal law, 84 A.L.R. Fed. 2d 1.

Identity of commenter and relationship of remark to employment decision as determinants of relevance of stray remark or comment in Title VII action for sex discrimination, 4 A.L.R. Fed. 3d 7.

Stray remark or comment involving male plaintiffs in Title VII action for sex discrimination, 4 A.L.R. Fed. 3d 8.

Stray remark or comment toward female plaintiffs regarding pregnancy, child-rearing, and related references in Title VII action for sex discrimination, 6 A.L.R. Fed. 3d 3.

Stray remark or comment involving general references toward female plaintiffs in Title VII action for sex discrimination, 7 A.L.R. Fed. 3d 2.

Stray remark or comment involving overt sexual references toward female plaintiffs in Title VII action for sex discrimination, 9 A.L.R. Fed. 3d 5.

Am. Jur. 2d.

- 48 Am. Jur. 2d, Labor and Labor Relations, § 881.

C.J.S.

- 51 C.J.S., Labor Relations, §§ 6 et seq., 65. 51B C.J.S., Labor Relations, §§ 1364, 1365.

ALR.

- What constitutes reverse or majority gender discrimination against males violative of federal constitution or statutes - public employment cases, 153 A.L.R. Fed. 609.

Am. Jur. 2d.

- 45B Am. Jur. 2d, Job Discrimination, § 931 et seq. 48 Am. Jur. 2d, Labor and Labor Relations, § 881.

C.J.S.

- 14 C.J.S., Civil Rights, §§ 19 et seq., 72, 79, 103 et seq., 281, 299. 51B C.J.S., Labor Relations, § 1532.

ALR.

- Collective bargaining agreement discriminating against certain employees as infringement of their rights, 172 A.L.R. 1351.

Recovery of damages for emotional distress resulting from discrimination because of sex or marital status, 61 A.L.R.3d 944.

Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions, 85 A.L.R.3d 351.

Application of state law to sex discrimination in employment, 87 A.L.R.3d 93.

What constitutes employment discrimination on the basis of "marital status" for purposes of state civil rights laws, 44 A.L.R.4th 1044.

Availability and scope of punitive damages under state employment discrimination law, 81 A.L.R.5th 367.

Punitive damages in actions for violations of Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. § 1981a; 42 U.S.C.A. § 2000e et seq.), 150 A.L.R. Fed. 601.

Award of compensatory damages under 42 U.S.C.A. § 1981a for violation of Title VII of Civil Rights Act of 1964, 154 A.L.R. Fed. 347.

What constitutes reverse or majority gender discrimination against males violative of federal constitution or statutes - private employment cases, 162 A.L.R. Fed. 273.

Stray remark or comment involving overt sexual references toward female plaintiffs in Title VII action for sex discrimination, 9 A.L.R. Fed. 3d 5.

Stray remark or comment involving general references toward female plaintiffs in Title VII action for sex discrimination, 7 A.L.R. Fed. 3d 2.

Stray remark or comment toward female plaintiffs regarding pregnancy, child-rearing, and related references in Title VII action for sex discrimination, 6 A.L.R. Fed. 3d 3.

Identity of commenter and relationship of remark to employment decision as determinants of relevance of stray remark or comment in Title VII action for sex discrimination, 4 A.L.R. Fed. 3d 7.

Stray remark or comment involving male plaintiffs in Title VII action for sex discrimination, 4 A.L.R. Fed. 3d 8.

Am. Jur. 2d.

- 63C Am. Jur. 2d, Public Officers and Employees, § 241 et seq.

C.J.S.

- 14A C.J.S., Civil Rights, § 724 et seq. 51B C.J.S., Labor Relations, § 1531. 67 C.J.S., Officers and Public Employees, §§ 8, 9.

Am. Jur. 2d.

- 51 Am. Jur. 2d, Limitation of Actions, §§ 33 et seq., 41 et seq.

C.J.S.

- 14A C.J.S., Civil Rights, §§ 335 et seq., 749 et seq., 756 et seq. 51B C.J.S., Labor Relations, § 1232. 54 C.J.S., Limitations of Actions, §§ 119, 120.

ALR.

- Validity of statutory provision for attorney's fees, 90 A.L.R. 530.

Effect of fraud to toll the period for bringing action prescribed in statute creating the right of action, 15 A.L.R.2d 500; 48 A.L.R.4th 1094.

What constitutes "trial," "final trial," or "final hearing" under statute authorizing allowance of attorneys' fees as costs on such proceeding, 100 A.L.R.2d 397.

Settlement negotiations as estopping reliance on statute of limitations, 39 A.L.R.3d 127.

Validity of statute allowing attorney's fee to successful claimant but not to defendant, or vice-versa, 73 A.L.R.3d 515.

Recovery of damages as remedy for wrongful discrimination under state or local civil rights provisions, 85 A.L.R.3d 351.

Requiring apology as "affirmative action" or other form of redress under State Civil Rights Act, 85 A.L.R.3d 402.

Fraud as extending statutory limitations period for contesting will or its probate, 48 A.L.R.4th 1094.

Award of front pay under state job discrimination statutes, 74 A.L.R.4th 746.

Availability and scope of punitive damages under state employment discrimination law, 81 A.L.R.5th 367.

Right of prevailing defendant to recover attorney's fees under § 706(k) of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e-5 (k)), 134 A.L.R. Fed. 161.

Factors or conditions in employment discrimination cases said to justify increase in attorney's fees awarded under § 706(k) of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e-5(k)), 140 A.L.R. Fed. 301; 151 A.L.R. Fed. 77.

Punitive damages in actions for violations of Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. § 1981a; 42 U.S.C.A. §§ 2000e et seq.), 150 A.L.R. Fed. 601.

Award of compensatory damages under 42 U.S.C.A. § 1981a for violation of Title VII of Civil Rights Act of 1964, 154 A.L.R. Fed. 347.

Am. Jur. 2d.

- 48B Am. Jur. 2d, Labor and Labor Relations, § 2435 et seq.

C.J.S.

- 6 C.J.S., Arbitration, § 4 et seq. 14A C.J.S., Civil Rights, § 722 et seq. 51A C.J.S., Labor Relations, § 615.

ALR.

- Construction and application of provisions of general arbitration statutes excluding from their operation contracts for labor or personal services, 64 A.L.R.2d 1336.

Construction and application of seniority provisions in labor relations agreements, 90 A.L.R.2d 975.

Validity and construction of labor contract provision modifying or destroying seniority rights under prior contract, 90 A.L.R.2d 1003.

Waiver of, or estoppel to assert, substantive right or right to arbitrate as question for court or arbitrator, 26 A.L.R.3d 604.

Libel and slander: privileged nature of communications made in course of grievance or arbitration procedure provided for by collective bargaining agreement, 60 A.L.R.3d 1041.

C.J.S.

- 51A C.J.S., Labor Relations, § 738. 82 C.J.S., Statutes, § 59.

Exemptions.

- Seasonal industries exempted from the operation of the statute prohibiting strikes without 30 days written notice can only properly be taken to include such seasonal industries as are made so by natural causes, and mere peaks and lulls in consumer demand with respect to a given industry cannot properly be said to so distinguish it. Local Union, Div. No. 1362 v. Howard Bus Lines, 202 Ga. 430, 43 S.E.2d 523 (1947).

County board of realtors.

- County board of realtors was not a "labor organization" within the meaning of the right-to-work statutes. Nixon v. Gwinnett County Bd. of Realtors, Inc., 249 Ga. 862, 295 S.E.2d 78 (1982).

Cited in Melton v. City of Atlanta, 324 F. Supp. 315 (N.D. Ga. 1971).

Am. Jur. 2d.

- 48 Am. Jur. 2d, Labor and Labor Relations, § 552. 48B Am. Jur. 2d, Labor and Labor Relations, §§ 2532 et seq., 2561 et seq., 2624 et seq.

C.J.S.

- 51 C.J.S., Labor Relations, §§ 46 et seq., 60, 74 et seq., 82, 177. 51A C.J.S., Labor Relations, § 457.

ALR.

- Employment of union members at less than union rates, or otherwise in violation of rules of union, as justification for calling strike, 66 A.L.R. 1085.

Suit between labor organizations or members thereof as involving a labor dispute within anti-injunction statutes, 138 A.L.R. 287; 170 A.L.R. 1096.

Employee committee or similar group as "labor organization" under the National Labor Relations Act (29 U.S.C.S. §§ 151 et seq.), 19 A.L.R.2d 566; 75 A.L.R. Fed. 262.

Interferences with production by concerted action of employees, short of formal strike, as affected by labor relations acts, 25 A.L.R.2d 315.

Applicability of Norris-La Guardia Act and similar state statutes to injunction action by private complainant, 29 A.L.R.2d 323.

Right of labor union to strike, picket, or impose boycott to compel payment by employer of fine or other penalty, 32 A.L.R.2d 342.

Continuance or termination of labor union's status or authority as bargaining agent, 42 A.L.R.2d 1415.

Stock purchase or stock bonus plan as within provision of federal labor relations acts requiring employer to bargain collectively, 58 A.L.R.2d 843.

Measure and elements of damages recoverable against union for breach of no-strike provision in collective bargaining agreement, 92 A.L.R.2d 1232.

Procedural rights of union members in union disciplinary proceedings - modern state cases, 79 A.L.R.4th 941.

Employer's duty to furnish information regarding financial status to employees' representative under National Labor Relations Act, 106 A.L.R. Fed. 694.

Reasonableness of qualifications for union office under § 401(c) of Labor-Management Reporting and Disclosure Act (29 U.S.C.A. § 481(c)), 147 A.L.R. Fed. 389.

Picketing not violative of statute.

- Picketing by a single picket posted on the highway in front of the employer's business, bearing a placard which stated that the employer was unfair to the labor union, who did no more than walk slowly back and forth on the public highway, and was guilty of no violence, intimidation, or other misconduct, did not violate this section. The court did not err in denying the prayer of the employer for an interlocutory injunction to prohibit the picketing. Hallman v. Painters Dist. Council No. 38, 203 Ga. 175, 45 S.E.2d 414 (1947).

Cited in Cain v. Phillips, 211 Ga. 806, 89 S.E.2d 163 (1955); International Longshoremen's Ass'n v. Georgia Ports Auth., 217 Ga. 712, 124 S.E.2d 733 (1962); NAACP v. Overstreet, 221 Ga. 16, 142 S.E.2d 816 (1965); Fleming v. Terminal Transp. Co., 222 Ga. 583, 151 S.E.2d 137 (1966); Sams v. Olah, 225 Ga. 497, 169 S.E.2d 790 (1969).

Am. Jur. 2d.

- 44B Am. Jur. 2d, Interference, § 44. 48A Am. Jur. 2d, Labor and Labor Relations, §§ 1106, 1660, 1664, 1635, 1673 et seq.

C.J.S.

- 51 C.J.S., Labor Relations, § 12. 51A C.J.S., Labor Relations, §§ 448 et seq., 516 et seq., 527, 564 et seq., 701.

ALR.

- The boycott as a weapon in industrial disputes, 32 A.L.R. 779; 116 A.L.R. 484.

Parades by strikers, 47 A.L.R. 753.

Constitutionality, construction, and application of statute denouncing offense of interfering with or molesting mechanic or laborer, 123 A.L.R. 316.

Rights in union label, shop card, or other insignia denoting union shop or workmanship, 42 A.L.R.2d 709.

Discontinuance or suspension by employer of all or part of his operations, or lockout of employees, as unfair labor practice, 20 A.L.R.3d 403.

Application of Garmon preemption doctrine by state courts - Construction and transportation industries, 110 A.L.R.5th 111.

"Mass discharge" of employees as evidence of unfair labor practice under § 8 (a)(1) and (3) of National Labor Relations Act (29 U.S.C.S. § 158(a)(1), (3)), 137 A.L.R. Fed 445.

Increase, or promise of increase or withholding of increase, of wages as unfair labor practice under state labor relations acts, 34 A.L.R.6th 327.

Staging locations for pickets upheld.

- Trial court's order placing conditions on the use of a staging location for pickets, designed to control the potential for violence and traffic impediments, was held not to be an abuse of discretion. Union Camp Corp. v. Savannah Bldg. Trades Council, 257 Ga. 518, 361 S.E.2d 178 (1987).

Cited in Fleming v. Terminal Transp. Co., 222 Ga. 583, 151 S.E.2d 137 (1966).

Am. Jur. 2d.

- 44B Am. Jur. 2d, Interference, § 44. 48B Am. Jur. 2d, Labor and Labor Relations, § 2580 et seq.

C.J.S.

- 51A C.J.S., Labor Relations, §§ 445, 464, 468 et seq.

ALR.

- The boycott as a weapon in industrial disputes, 32 A.L.R. 779; 116 A.L.R. 484.

Parades by strikers, 47 A.L.R. 753.

Validity of statute or ordinance against picketing, 125 A.L.R. 963; 130 A.L.R. 1303.

Right of labor union to strike, picket, or impose boycott to compel payment by employer of fine or other penalty, 32 A.L.R.2d 342.

Liability, under statute, of labor union or its membership for torts committed in connection with primary labor activities - state cases, 85 A.L.R.4th 979.

Construction of Freedom of Speech and Assembly Provisions of § 101(a)(2) of Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C.S. § 411(a)(2)), included in Bill of Rights of Member of Labor Organizations, 143 A.L.R. Fed. 1

Am. Jur. 2d.

- 44B Am. Jur. 2d, Interference, §§ 1, 4, 6, 48. 48 Am. Jur. 2d, Labor and Labor Relations, § 538. 74 Am. Jur. 2d, Torts, §§ 40, 41.

C.J.S.

- 51A C.J.S., Labor Relations, §§ 387 et seq., 445, 448, 449 et seq. 86 C.J.S., Torts, § 42 et seq.

ALR.

- The boycott as a weapon in industrial disputes, 16 A.L.R. 230; 27 A.L.R. 651; 32 A.L.R. 779; 116 A.L.R. 484.

Liability of labor organization for inducing breach of contract to furnish or accept material, 29 A.L.R. 562.

Right of union to refuse to work on materials produced or transported by nonunion labor, 52 A.L.R. 1144; 54 A.L.R. 806.

Constitutionality, construction, and application of statute denouncing offense of interfering with or molesting mechanic or laborer, 123 A.L.R. 316.

Right of labor union to publicize that commodity is nonunion-made, or that competing commodity is union-made, 131 A.L.R. 1068.

Constitutionality of statute respecting employer's control of or interference with political affiliations or activities of employees, 166 A.L.R. 707.

Applicability of Norris-La Guardia Act and similar state statutes to injunction action by private complainant, 29 A.L.R.2d 323.

Right of labor union to strike, picket, or impose boycott to compel payment by employer of fine or other penalty, 32 A.L.R.2d 342.

Rights and remedies of workmen blacklisted by labor union, 46 A.L.R.2d 1124.

Liability, under statute, of labor union or its membership for torts committed in connection with primary labor activities - state cases, 85 A.L.R.4th 979.

Staging location for pickets permitted.

- Trial court's order placing conditions on the use of a staging location for pickets, designed to control the potential for violence and traffic impediments, was held not to be an abuse of discretion. Union Camp Corp. v. Savannah Bldg. Trades Council, 257 Ga. 518, 361 S.E.2d 178 (1987).

Cited in Fleming v. Terminal Transp. Co., 222 Ga. 583, 151 S.E.2d 137 (1966).

Am. Jur. 2d.

- 48 Am. Jur. 2d, Labor and Labor Relations, § 552 et seq.

C.J.S.

- 51A C.J.S., Labor Relations, §§ 462 et seq., 467 et seq.

ALR.

- Validity of statute or ordinance against picketing, 35 A.L.R. 1200; 108 A.L.R. 1119; 122 A.L.R. 1043; 125 A.L.R. 963; 130 A.L.R. 1303.

Parades by strikers, 47 A.L.R. 753.

Violation of injunction against unlawful picketing as affecting allowable scope of subsequent injunction, 73 A.L.R. 677.

Lawfulness of, or right to enjoin, picketing as affected by considerations relating to practical termination or inability to attain object of labor dispute, 122 A.L.R. 1292.

Legality of, and injunction against, peaceable picketing by labor union, of plant whose employees are represented by another union as statutory bargaining agent, 166 A.L.R. 185.

Right of third party in area picketed during labor dispute, who has no connection with the dispute, to relief against such picketing, 15 A.L.R.2d 1396.

Applicability of Norris-La Guardia Act and similar state statutes to injunction action by private complainant, 29 A.L.R.2d 323.

Right of labor union to strike, picket, or impose boycott to compel payment by employer of fine or other penalty, 32 A.L.R.2d 342.

Nonlabor picketing or boycott, 93 A.L.R.2d 1284.

Legality of peaceful labor picketing on private property, 10 A.L.R.3d 846.

Infringement upon individual's rights.

- It is unlawful to infringe upon an individual's employment rights either because the individual is or is not a member of a union. International Bhd. of Elec. Workers v. Briscoe, 143 Ga. App. 417, 239 S.E.2d 38 (1977).

Constitutional guarantee.

- Peaceful picketing is authorized under the constitutional guarantee of free speech. It is not unlawful unless it is for an illegal purpose. Curry v. Construction & Gen. Laborers Union Local 438, 217 Ga. 512, 123 S.E.2d 653 (1962), commented on in 14 Mercer L. Rev. 456 (1963).

Interference with right to picket.

- Right to peacefully picket cannot be interfered with by courts unless it is for an unlawful purpose. Woodard v. Collier, 210 Ga. 239, 78 S.E.2d 526 (1953), commented on in 17 Ga. B.J. 128 (1954).

Picketing for unlawful purpose.

- Actions of picketers constituted picketing for an unlawful purpose when evidence demanded a finding that a picket was placed on the job for the purpose of forcing the employer to employ only union labor, or else be unable to comply with the terms of the employer's contract due to the refusal of the members of other unions employed in the work to cross the picket line. International Longshoremen's Ass'n v. Georgia Ports Auth., 217 Ga. 712, 124 S.E.2d 733 (1962), cert. denied, 370 U.S. 922, 82 S. Ct. 1561, 8 L. Ed. 2d 503 (1962).

Picketing for the purpose of forcing an employer to employ only union labor, or be unable to comply with the terms of the employer's contract because of the refusal of the members of other unions employed in the work to cross the picket line, and thereby slow the project to a virtual standstill, is for an unlawful purpose. Powers v. Courson, 213 Ga. 20, 96 S.E.2d 577 (1957); Curry v. Construction & Gen. Laborers Union Local 438, 217 Ga. 512, 123 S.E.2d 653 (1962), reversed on other grounds, 371 U.S. 542, 83 S. Ct. 531, 9 L. Ed. 2d 514 (1963), commented on in 14 Mercer L. Rev. 456 (1963).

Injunction.

- If picketing is for an unlawful purpose it can and should be enjoined. Woodard v. Collier, 210 Ga. 239, 78 S.E.2d 526 (1953), commented on in 17 Ga. B.J. 128 (1954).

Right to work law violation under state law.

- In a state which has a "right to work" law, such as the one provided for in this section the right to work is a state-conferred right, and a violation of this right creates a cause of action which arises under state law rather than under the Taft-Hartley Act, 29 U.S.C. § 141 et seq. McDowell v. Clement Bros. Co., 260 F. Supp. 817 (N.D. Ga. 1966).

State court jurisdiction.

- State court has no jurisdiction to issue an injunction or to adjudicate a controversy which lies within the exclusive powers of the National Labor Relations Board. Local 438 Constr. & Gen. Laborers' Union v. Curry, 371 U.S. 542, 83 S. Ct. 531, 9 L. Ed. 2d 514 (1963).

Cited in Cook v. Huckabee Transp. Corp., 215 Ga. 9, 108 S.E.2d 710 (1959); International Longshoremen's Ass'n v. Georgia Ports Auth., 217 Ga. 712, 124 S.E.2d 733 (1962); Brown Transp. Corp. v. Truck Drivers & Helpers Local 728, 218 Ga. 581, 129 S.E.2d 767 (1963); Local 225 United Bhd. of Carpenters v. Briggs, 218 Ga. 742, 130 S.E.2d 707 (1963); Carpenters Local Union No. 3024 v. United Bhd. of Carpenters, 220 Ga. 596, 140 S.E.2d 876 (1965); NAACP v. Overstreet, 221 Ga. 16, 142 S.E.2d 816 (1965); Fleming v. Terminal Transp. Co., 222 Ga. 583, 151 S.E.2d 137 (1966); Hudgens v. Retail, Whsle. & Dep't Store Local 315, 133 Ga. App. 329, 210 S.E.2d 821 (1974); Nixon v. Gwinnett County Bd. of Realtors, Inc., 249 Ga. 862, 295 S.E.2d 78 (1982).

Am. Jur. 2d.

- 48A Am. Jur. 2d, Labor and Labor Relations, §§ 1527 et seq., 1593 et seq., 1653 et seq., 1716 et seq.

C.J.S.

- 51 C.J.S., Labor Relations, §§ 12, 13, 89 et seq. 51A C.J.S., Labor Relations, §§ 447 et seq., 450, 518, 524, 782, 783.

ALR.

- Validity and construction of contract by labor unions to continue salary or wages in whole or part or pay benefits if other party loses employment or position because of joining union, 114 A.L.R. 1300; 125 A.L.R. 1260.

Constitutionality, construction, and application of statute denouncing offense of interfering with or molesting mechanic or laborer, 123 A.L.R. 316.

Unfair labor practice, within National Labor Relations Act or similar state statute, predicated upon expressions of opinion or statements by employer concerning labor unions, 146 A.L.R. 1024.

Unfair labor practice, within National Labor Relations Act or similar state statute, predicated upon statements or acts by employees not expressly authorized by employer, 146 A.L.R. 1062.

Closed shops and closed unions, 160 A.L.R. 918.

Inviting or soliciting return of striking employees to work as unfair labor practice, 4 A.L.R.2d 1356.

Right of union rival of collective bargaining agent union to act for individual employee or group of employees as regards grievances, 9 A.L.R.2d 696.

Applicability of Norris-La Guardia Act and similar state statutes to injunction action by private complainant, 29 A.L.R.2d 323.

Validity and construction of statutes regulating or prohibiting coercive action by labor unions in jurisdictional disputes, 33 A.L.R.2d 340.

Rights in union label, shop card, or other insignia denoting union shop or workmanship, 42 A.L.R.2d 709.

Discontinuance or suspension by employer of all or part of his operations, or lockout of employees, as unfair labor practice, 20 A.L.R.3d 403.

Peaceful picketing of private residence, 42 A.L.R.3d 1353.

Procedural rights of union members in union disciplinary proceedings - modern state cases, 79 A.L.R.4th 941.

Construction of Freedom of Speech and Assembly Provisions of § 101(a)(2) of Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C.S. § 411(a)(2)), included in Bill of Rights of Member of Labor Organizations, 143 A.L.R. Fed. 1

Job placement of returning strikers as unfair labor practice under § 8(a) of National Labor Relations Act (29 U.S.C.A. § 158(a)), 145 A.L.R. Fed. 619.

Increase, or promise of increase or withholding of increase, of wages as unfair labor practice under state labor relations acts, 34 A.L.R.6th 327.

Am. Jur. 2d.

- 48 Am. Jur. 2d, Labor and Labor Relations, § 34 et seq.

C.J.S.

- 51 C.J.S., Labor Relations, §§ 69 et seq., 92. 51A C.J.S., Labor Relations, §§ 340 et seq., 522, 556 et seq.

County board of realtors.

- County board of realtors was not a "labor organization" within the meaning of the right-to-work statutes. Nixon v. Gwinnett County Bd. of Realtors, Inc., 249 Ga. 862, 295 S.E.2d 78 (1982).

American Nurses Association.

- The prohibition against requiring membership in a labor organization is not applicable to the American Nurses Association. 1965-66 Op. Att'y Gen. No. 66-67.

Am. Jur. 2d.

- 48 Am. Jur. 2d, Labor and Labor Relations, §§ 1, 15 et seq. 35 et seq. 27 Am. Jur. 2d, Employment Relationship, § 1.

C.J.S.

- 51 C.J.S., Labor Relations, §§ 6, 65, 69 et seq., 92.

ALR.

- Validity, construction, and application of state right-to-work provisions, 105 A.L.R.5th 243.

Remedy for discharged employees is action for damages.

- When employees have been wrongfully, but finally, discharged by the employer, the remedy available to the employees so discharged is an action for damages; a mandatory injunction will not be granted against the completed acts of discharge. Sandt v. Mason, 208 Ga. 541, 67 S.E.2d 767 (1951).

Upon general rules of law.

- If employees, in violation of this section were wrongfully discharged, their right to damages, if any, would rest upon the general rules of law of Georgia. Sandt v. Mason, 208 Ga. 541, 67 S.E.2d 767 (1951).

Amount of damages.

- When petitioners were employed on a week-to-week basis, being paid weekly, and their discharge was based on their affiliation with a labor union and contrary to the pronouncement of this section, the most that the petitioners could collect in damages would be the full term of their employment (one week). Sandt v. Mason, 208 Ga. 541, 67 S.E.2d 767 (1951).

Right to work law violation under state law.

- In a state which has a "right to work" law, such as the one provided for in this section, the right to work is a state-conferred right, and a violation of this right creates a cause of action which arises under state law rather than under the Taft-Hartley Act, 29 U.S.C. § 141 et seq. McDowell v. Clement Bros. Co., 260 F. Supp. 817 (N.D. Ga. 1966).

No private right of action.

- Because O.C.G.A. § 34-6-21 did not provide a private remedy and was only a statement of public policy by the State of Georgia, the plaintiff temporary Mexican farm workers' claim that the defendant employer discriminated against union members in recruiting and hiring the workers in violation of O.C.G.A. § 34-6-21 failed. Ramos-Barrientos v. Bland, 728 F. Supp. 2d 1360 (S.D. Ga. 2010).

Claim of Mexican farm workers rejected.

- Nothing showed the defendant employer was directly involved in removing union workers from a preferred worker list; thus, a breach of contract claim filed by the plaintiff temporary Mexican farm workers, premised on an immigration conveyance order's promise to comply with all employment-related law, which included O.C.G.A. § 34-6-21, failed. Ramos-Barrientos v. Bland, 728 F. Supp. 2d 1360 (S.D. Ga. 2010).

Cited in Carpenters Local Union No. 3024 v. United Bhd. of Carpenters, 220 Ga. 596, 140 S.E.2d 876 (1965); Martell v. Atlanta Biltmore Hotel Corp., 114 Ga. App. 646, 152 S.E.2d 579 (1966); Stein Printing Co. v. Atlanta Typographical Union 48, 329 F. Supp. 754 (N.D. Ga. 1971); Nixon v. Gwinnett County Bd. of Realtors, Inc., 249 Ga. 862, 295 S.E.2d 78 (1982).

Union shop agreement.

- A union shop is not legal in Georgia. 1952-53 Op. Att'y Gen. p. 124.

A union shop agreement between a railroad and a union is enforceable in Georgia in light of the amendment to the federal Railway Labor Act, 45 U.S.C. § 151 et seq., authorizing union shop agreements notwithstanding any state right to work law. 1970 Op. Att'y Gen. No. 70-12.

Am. Jur. 2d.

- 48 Am. Jur. 2d, Labor and Labor Relations, §§ 1059, 1086. 48A Am. Jur. 2d, Labor and Labor Relations, § 2232 et seq.

C.J.S.

- 51 C.J.S., Labor Relations, § 13. 51A C.J.S., Labor Relations, § 549.

ALR.

- Who are entitled to benefit of statutes giving right to combine, 166 A.L.R. 161.

Rights in union label, shop card, or other insignia denoting union shop or workmanship, 42 A.L.R.2d 709.

Labor relations acts: discharge of employee as reprisal or retaliation for union organizational activities, 83 A.L.R.2d 532.

Validity, construction, and application of state right-to-work provisions, 105 A.L.R.5th 243.

Damages for allegedly wrongful interference with employment rights as received "on account of personal injuries," so as to be excludible from income tax under 26 USC § 104(a)(2), 106 A.L.R. Fed. 321.

Right to work law violation under state law.

- In a state which has a "right to work" law, such as the one provided for in Ga. L. 1947, p. 616, § 3 (see now O.C.G.A. § 34-6-22), the right to work is a state-conferred right, and a violation of this right creates a cause of action which arises under state law rather than under the Taft-Hartley Act, 29 U.S.C. § 141 et seq. McDowell v. Clement Bros. Co., 260 F. Supp. 817 (N.D. Ga. 1966).

No violation of statute.

- When a union operated a hiring hall where both members and nonmembers could obtain referrals for temporary work, the union's charging of a referral fee did not violate O.C.G.A. § 34-6-22. The payment of the fee was not a condition of employment, and in the wake of a settlement before the National Labor Relations Board, the union charged members and nonmembers the same fee. Perry v. Int'l Longshoremen Ass'n Local No. 1414, 295 Ga. App. 799, 673 S.E.2d 302 (2009).

Cited in Sandt v. Mason, 208 Ga. 541, 67 S.E.2d 767 (1951); Carpenters Local Union No. 3024 v. United Bhd. of Carpenters, 220 Ga. 596, 140 S.E.2d 876 (1965); Nixon v. Gwinnett County Bd. of Realtors, Inc., 249 Ga. 862, 295 S.E.2d 78 (1982).

Union shop agreement.

- A union shop agreement between a railroad and a union is enforceable in Georgia in light of the amendment to the federal Railway Labor Act, 45 U.S.C. § 151 et seq., authorizing union shop agreements notwithstanding any state right to work law. 1970 Op. Att'y Gen. No. 70-12.

Am. Jur. 2d.

- 48A Am. Jur. 2d, Labor and Labor Relations, §§ 1655 et seq., 1671.

C.J.S.

- 51 C.J.S., Labor Relations, § 110 et seq.

ALR.

- Closed shops and closed unions, 160 A.L.R. 918.

Refusal of member of labor union to pay assessment imposed by it for purposes of promoting or defeating contemplated legislation as ground for suspension or expulsion, 175 A.L.R. 397.

Rights in union label, shop card, or other insignia denoting union shop or workmanship, 42 A.L.R.2d 709.

Procedural rights of union members in union disciplinary proceedings - modern state cases, 79 A.L.R.4th 941.

Validity, construction, and application of state right-to-work provisions, 105 A.L.R.5th 243.

Right to work law violation under state law.

- In a state which has a "right to work" law, such as the one provided for in this section, the right to work is a state-conferred right; and a violation of this right creates a cause of action which arises under state law rather than under the Taft-Hartley Act, 29 U.S.C. § 141 et seq. McDowell v. Clement Bros. Co., 260 F. Supp. 817 (N.D. Ga. 1966).

Cited in Sandt v. Mason, 208 Ga. 541, 67 S.E.2d 767 (1951); NLRB v. Atlanta Coca-Cola Bottling Co., 293 F.2d 300 (5th Cir. 1961); Stein Printing Co. v. Atlanta Typographical Union 48, 329 F. Supp. 754 (N.D. Ga. 1971).

Union shop agreement.

- A union shop agreement between a railroad and a union is enforceable in Georgia in light of the amendment to the federal Railway Labor Act, 45 U.S.C. § 151 et seq., authorizing union shop agreements notwithstanding any state right to work law. 1970 Op. Att'y Gen. No. 70-12.

Am. Jur. 2d.

- 48 Am. Jur. 2d, Labor and Labor Relations, §§ 10, 11.

C.J.S.

- 51 C.J.S., Labor Relations, §§ 12, 101 et seq. 51A C.J.S., Labor Relations, §§ 311, 321 et seq.

ALR.

- Validity and effect of statutes restricting remedy by injunction in industrial disputes, 35 A.L.R. 460; 97 A.L.R. 1333; 106 A.L.R. 361; 120 A.L.R. 316; 124 A.L.R. 751; 127 A.L.R. 868; 150 A.L.R. 819.

Closed shops and closed unions, 160 A.L.R. 918.

Collective bargaining agreement discriminating against certain employees as infringement of their rights, 172 A.L.R. 1351.

Refusal of member of labor union to pay assessment imposed by it for purposes of promoting or defeating contemplated legislation as ground for suspension or expulsion, 175 A.L.R. 397.

Right of union rival of collective bargaining agent union to act for individual employee or group of employees as regards grievances, 9 A.L.R.2d 696.

Legality of, and injunction against, peaceful picketing to force employees to join union or to compel employer to enter into a contract which would in effect compel them to do so, in the absence of a dispute between employer and employees as to terms or conditions of employment, 11 A.L.R.2d 1338.

Rights in union label, shop card, or other insignia denoting union shop or workmanship, 42 A.L.R.2d 709.

Right to work law violation under state law.

- In a state which has a "right to work" law, such as the one provided for in this section, the right to work is a state-conferred right, and a violation of this right creates a cause of action which arises under state law rather than under the Taft-Hartley Act, 29 U.S.C. § 141 et seq. McDowell v. Clement Bros. Co., 260 F. Supp. 817 (N.D. Ga. 1966).

Cited in Sandt v. Mason, 208 Ga. 541, 67 S.E.2d 767 (1951); Carpenters Local Union No. 3024 v. United Bhd. of Carpenters, 220 Ga. 596, 140 S.E.2d 876 (1965); Stein Printing Co. v. Atlanta Typographical Union 48, 329 F. Supp. 754 (N.D. Ga. 1971); Local 926, Int'l Union of Operating Eng'rs v. Jones, 460 U.S. 669, 103 S. Ct. 1453, 75 L. Ed. 2d 368 (1983).

Union shop agreement.

- A union shop agreement between a railroad and a union is enforceable in Georgia in light of the amendment to the federal Railway Labor Act, 45 U.S.C. § 151 et seq., authorizing union shop agreements notwithstanding any state right to work law. 1970 Op. Att'y Gen. No. 70-12.

Am. Jur. 2d.

- 48 Am. Jur. 2d, Labor and Labor Relations, §§ 10, 11.

C.J.S.

- 51 C.J.S., Labor Relations, §§ 12, 110 et seq. 51A C.J.S., Labor Relations, §§ 316, 327 et seq., 347 et seq.

ALR.

- Collective bargaining agreement discriminating against certain employees as infringement of their rights, 172 A.L.R. 1351.

Period of irrevocability.

- Authorization for a deduction of union dues is irrevocable for not more than one year, as set forth under federal law. SeaPak v. Industrial Employees, Div. of Nat'l Maritime Union, 300 F. Supp. 1197 (S.D. Ga. 1969), aff'd, 423 F.2d 1229 (5th Cir. 1970), 400 U.S. 985, 91 S. Ct. 452, 27 L. Ed. 2d 434 (1971).

Compulsory unionism.

- Checkoff authorizations irrevocable for year after date do not amount to compulsory unionism as to employees who wish to withdraw from membership prior to that time. SeaPak v. Industrial Employees, Div. of Nat'l Maritime Union, 300 F. Supp. 1197 (S.D. Ga. 1969), aff'd, 423 F.2d 1229 (5th Cir. 1970), 400 U.S. 985, 91 S. Ct. 452, 27 L. Ed. 2d 434 (1971).

Cited in Sandt v. Mason, 208 Ga. 541, 67 S.E.2d 767 (1951); Martell v. Atlanta Biltmore Hotel Corp., 114 Ga. App. 646, 152 S.E.2d 579 (1966); McDowell v. Clement Bros. Co., 260 F. Supp. 817 (N.D. Ga. 1966).

Union shop agreement.

- A union shop agreement between a railroad and a union is enforceable in Georgia in light of the amendment to the federal Railway Labor Act, 45 U.S.C. § 151 et seq., authorizing union shop agreements notwithstanding any state right to work law. 1970 Op. Att'y Gen. No. 70-12.

Am. Jur. 2d.

- 48 Am. Jur. 2d, Labor and Labor Relations, § 15.

C.J.S.

- 51 C.J.S., Labor Relations, § 110 et seq. 51A C.J.S., Labor Relations, §§ 351, 399 et seq.

ALR.

- Constitutionality, construction, and application of statute prohibiting employer from deducting from wages of employees dues or assessments payable to labor organization, or otherwise assisting in collection thereof, 108 A.L.R. 1133.

Deduction or collection of labor union dues from wages of employees, 135 A.L.R. 507.

Contract provisions for deduction of union dues from wages of employees and their payment to union as within statute prohibiting or regulating assignment of future earnings or wages, 14 A.L.R.2d 177.

Union shop agreement.

- A union shop agreement between a railroad and a union is enforceable in Georgia in light of the amendment to the federal Railway Labor Act, 45 U.S.C. § 151 et seq., authorizing union shop agreements notwithstanding any state right to work law. 1970 Op. Att'y Gen. No. 70-12.

Am. Jur. 2d.

- 48 Am. Jur. 2d, Labor and Labor Relations, § 15.

C.J.S.

- 51 C.J.S., Labor Relations, § 110 et seq. 51A C.J.S., Labor Relations, §§ 351, 361, 362, 399 et seq.

ALR.

- Contract provisions for deduction of union dues from wages of employees and their payment to union as within statute prohibiting or regulating assignment of future earnings or wages, 14 A.L.R.2d 177.

Rights in union label, shop card, or other insignia denoting union shop or workmanship, 42 A.L.R.2d 709.

Penalties and remedies.

- Neither the remedy of injunction provided in Ga. L. 1947, p. 616, § 8 (see now O.C.G.A. § 34-6-27) nor the declaration that certain acts in Ga. L. 1947, p. 616, § 9 (see now O.C.G.A. § 34-6-28) shall amount to a misdemeanor was made applicable to Ga. L. 1947, p. 616, § 2 (see now O.C.G.A. § 34-6-21). Sandt v. Mason, 208 Ga. 541, 67 S.E.2d 767 (1951).

Am. Jur. 2d.

- 48 Am. Jur. 2d, Labor and Labor Relations, §§ 13, 20.

C.J.S.

- 51B C.J.S., Labor Relations, § 1018.

ALR.

- Validity and effect of statutes restricting remedy by injunction in industrial disputes, 35 A.L.R. 460; 97 A.L.R. 1333; 106 A.L.R. 361; 120 A.L.R. 316; 124 A.L.R. 751; 127 A.L.R. 868; 150 A.L.R. 819.

Right to injunction in labor dispute as affected by misconduct of complainant, 66 A.L.R. 1090.

Right of member to recover against or enjoin union where, without fault on his part, he has been damaged by its act, not specifically directed against him, 117 A.L.R. 823.

What amounts to seizure and holding of employer's plant, equipment, machinery, or other property within statutory exception to inhibition on injunctions in labor disputes, 163 A.L.R. 668.

Refusal of member of labor union to pay assessment imposed by it for purposes of promoting or defeating contemplated legislation as ground for suspension or expulsion, 175 A.L.R. 397.

Legality of, and injunction against, peaceful picketing as affected by employer's lack of opportunity to negotiate with union or employees, 11 A.L.R.2d 1069.

Applicability of Norris-La Guardia Act and similar state statutes to injunction action by private complainant, 29 A.L.R.2d 323.

Applicability of Norris-La Guardia Act and similar state statutes to injunction action by governmental unit or agency, 29 A.L.R.2d 431.

State's power to enjoin violation of collective labor contract as affected by federal labor relations acts, 32 A.L.R.2d 829.

State court's power to enjoin picketing as affected by Labor Management Relations Act, 32 A.L.R.2d 1026.

Amount of attorneys' compensation, 57 A.L.R.3d 475; 57 A.L.R.3d 550; 57 A.L.R.3d 584; 58 A.L.R.3d 201; 58 A.L.R.3d 317; 17 A.L.R.5th 366; 23 A.L.R.5th 241.

Procedural rights of union members in union disciplinary proceedings - modern state cases, 79 A.L.R.4th 941.

Excessiveness or adequacy of attorneys' fees in matters involving real estate - modern cases, 10 A.L.R.5th 448.

What circumstances are sufficient to warrant granting of injunctive relief under "boys market" exception to operation of anti-injunction provisions of Norris-LaGuerdia Act, 66 A.L.R. Fed. 11.

Calculations of attorneys' fees under Federal Tort Claims Act - 28 USCS § 2678, 86 A.L.R. Fed. 866.

Penalties and remedies.

- Neither the remedy of injunction provided in Ga. L. 1947, p. 616, § 8 (see now O.C.G.A. § 34-6-27) nor the declaration that certain acts in Ga. L. 1947, p. 616, § 9 (see now O.C.G.A. § 34-6-28) shall amount to a misdemeanor was made applicable to Ga. L. 1947, p. 616, § 2 (see now O.C.G.A. § 34-6-21). Sandt v. Mason, 208 Ga. 541, 67 S.E.2d 767 (1951).

ALR.

- Deduction or collection of labor union dues from wages of employees, 135 A.L.R. 507.

Interferences with production by concerted action of employees, short of formal strike, as affected by labor relations acts, 25 A.L.R.2d 315.

Rights and remedies of workmen blacklisted by labor union, 46 A.L.R.2d 1124.

Validity and construction of "right-to-work" laws, 92 A.L.R.2d 598.

ALR.

- Visual impairment as handicap or disability under state employment discrimination law, 77 A.L.R.5th 595.

Who is "qualified individual" under Americans with Disabilities Act provisions defining and extending protection against employment discrimination to qualified individual with disability (42 U.S.C.A. §§ 12111(8), 12112(a)), 146 A.L.R. Fed. 1

What constitutes federal financial assistance for purposes of § 504 of Rehabilitation Act (29 U.S.C.A. § 794), which prohibits any program or activity receiving federal financial assistance from discriminating on basis of disability, 147 A.L.R. Fed. 205.

Action under Americans with Disabilities Act (42 U.S.C.A. § 12101 et seq.) to remedy alleged harassment or hostile work environment, 162 A.L.R. Fed. 603.

What constitutes employment discrimination by public entity in violation of Americans with Disabilities Act (ADA), 42 U.S.C.A. § 12132, 164 A.L.R. Fed. 433.

Handicapped individual illustrated.

- Employee's sensitivity to pipe smoke of employer's vice president was not an impairment that affected the employee's ability generally to secure employment and the employee did not meet the definition of "handicapped individual" under O.C.G.A. § 34-6A-2. Hennly v. Richardson, 264 Ga. 355, 444 S.E.2d 317 (1994).

Claustrophobia and depression.

- Trial court correctly concluded that the plaintiff's conditions of claustrophobia and depression did not constitute a "handicap" within the meaning of the Georgia Equal Employment for the Handicapped Code (GEEHC). The statute clearly and unambiguously manifests the General Assembly's intent to exclude emotional and mental disorders of that type from the coverage of the GEEHC by limiting the definition of mental impairment to any physiological disorder or condition or anatomical loss affecting certain body systems or mental retardation and specific learning disabilities. Bowers v. Estep, 204 Ga. App. 615, 420 S.E.2d 336, cert. denied, 204 Ga. App. 921, 420 S.E.2d 336 (1992).

ALR.

- Who is "individual with handicaps" under Rehabilitation Act of 1973 (29 USCS §§ 701 et seq.), 97 A.L.R. Fed. 40.

Good faith.

- Employer proved it acted in good faith when it relied on a doctor's opinion regarding a diabetic warehouse employee's ability to work, when the employer's affidavit stated that the decision to terminate the employee was not based on any personal animosity towards the employee but was made "only" out of concern for potential safety problems posed by the employee's medical condition. Spicer v. Martin-Brower Co., 177 Ga. App. 197, 338 S.E.2d 773 (1985).

Employer may rely on licensed physician's professional recommendation.

- Summary judgment for an employer was affirmed when the employer submitted evidence tending to establish without dispute both that its employment decision was made in reliance upon the professional recommendation of a licensed physician and that its preference of that physician's opinion over the contrary opinion of the employee's personal physician was based upon safety concerns rather than upon an unlawful, discriminatory motive. Daugherty v. Metropolitan Atlanta Rapid Transit Auth., 187 Ga. App. 864, 371 S.E.2d 677 (1988).

C.J.S.

- 14 C.J.S., Civil Rights, §§ 109, 110.

ALR.

- Construction and application of § 102(d) of Americans with Disabilities Act (42 U.S.C.A. § 12112(d)) pertaining to medical examinations and inquiries, 159 A.L.R. Fed. 89.

Opportunity by employee to select job.

- O.C.G.A. § 34-6A-4 does not impose on an employer a duty to provide a handicapped employee with the opportunity to select a job which the employee would be able to perform. Dugger v. Delta Air Lines, 173 Ga. App. 16, 325 S.E.2d 394 (1984), cert. denied, 471 U.S. 1103, 105 S. Ct. 2330, 85 L. Ed. 2d 847 (1985).

Rebuttal of presumption of unlawful discrimination.

- Presumption of discrimination arising from a handicapped employee's prima facie case of disparate treatment is rebutted when the employer proffers nondiscriminatory reasons for an employment decision; therefore, an employee is not entitled to a verdict as a matter of law simply by establishing a prima facie case, but must prove that a proffered reason is not the true reason for an employment decision. Shaw v. W.M. Wrigley, Jr., Co., 183 Ga. App. 699, 359 S.E.2d 723 (1987).

Cited in Garrett v. K-Mart Corp., 197 Ga. App. 374, 398 S.E.2d 302 (1990).

C.J.S.

- 14 C.J.S., Civil Rights, §§ 92, 98, 108.

ALR.

- Handicap as job disqualification under state legislation forbidding job discrimination on account of handicap, 78 A.L.R.4th 265.

Discrimination "because of handicap" or "on the basis of handicap" under state statutes prohibiting job discrimination on account of handicap, 81 A.L.R.4th 144.

Visual impairment as handicap or disability under state employment discrimination law, 77 A.L.R.5th 595.

When must specialized equipment or other workplace modifications be provided to qualified disabled employee or applicant as reasonable accommodation, 125 A.L.R. Fed. 629.

When must employer offer qualified disabled employee or applicant opportunity to change employee's workplace or work at home as means of fulfilling reasonable accommodation requirement, 133 A.L.R. Fed. 521.

When does job restructuring constitute reasonable accommodation of qualified disabled employee or applicant, 142 A.L.R. Fed 311.

Who is "qualified individual" under Americans with Disabilities Act provisions defining and extending protection against employment discrimination to qualified individual with disability (42 U.S.C.A. §§ 12111(8), 12112(a)), 146 A.L.R. Fed. 1

When is individual regarded as having or perceived to have, impairment within meaning of Americans with Disabilities Act (42 U.S.C.A. § 12102(2)(c)), 148 A.L.R. Fed. 305.

Propriety of treating separate entities as one for determining number of employees required by Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e(b)) for action against "employer", 160 A.L.R. Fed. 441.

Action under Americans with Disabilities Act (42 U.S.C.A. §§ 12101 et seq.), to remedy alleged harassment or hostile work environment, 162 A.L.R. Fed. 603.

What constitutes employment discrimination by public entity in violation of Americans with Disabilities Act (ADA), 42 U.S.C.A. § 12132, 164 A.L.R. Fed. 433.

Validity, construction, and application of Americans with Disabilities Act (42 U.S.C.A. § 12112(b)(5)(A)) and Rehabilitation Act (29 U.S.C.A. § 791) reasonable accommodation requirements to employee's request to work from home or to change location of employment, 77 A.L.R. Fed. 2d 187.

C.J.S.

- 14 C.J.S., Civil Rights, §§ 92, 98, 108.

ALR.

- Who has "participated" in investigation proceeding or hearing and is thereby protected from retaliation under § 704(a) of Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e-3(a)), 149 A.L.R. Fed. 431.

Application to claims under federal statute.

- Although the specific claim of alleged wrongful termination for being HIV positive was one of employment discrimination to which O.C.G.A. § 34-6A-6(a) would have applied, the federal characterization of claims brought under 29 U.S.C. § 794 as "injuries to the person" makes O.C.G.A. § 9-3-33, the statute of limitations for personal injury, the most analogous. Henrickson v. Sammons, 263 Ga. 331, 434 S.E.2d 51 (1993).

Action filed more than 180 days after firing untimely.

- Employee's filing of an action to recover damages for being terminated as a result of a handicap was untimely because it was not filed within 180 days of the date the employee was given oral notice of the employee's termination although the written notice was not received by mail until later. Humphreys v. Riverside Mfg. Co., 169 Ga. App. 18, 311 S.E.2d 223 (1983).

Employee's complaint filed 182 days after the refusal of the employer to accept the employee back to work following an AIDS related illness was properly dismissed because it was time barred. Beck v. Interstate Brands Corp., 953 F.2d 1275 (11th Cir. 1992).

Dismissed employee had no constitutional right to trial by jury on the employee's claim for back pay under O.C.G.A. Ch. 6A, T. 34. Smith v. Milliken & Co., 189 Ga. App. 897, 377 S.E.2d 916 (1989).

Failure to comply with company policy regarding absence from work.

- That handicapped employees may be expected to have more medically-related work absences than non-handicapped employees was no excuse for a handicapped employee's failure to have complied with a company policy requiring that all employees, as a condition of their continued employment, keep their employer currently informed as to an absence from work. Kut-Kwick Corp. v. Johnson, 189 Ga. App. 500, 376 S.E.2d 399 (1988), cert. denied, 189 Ga. App. 912, 376 S.E.2d 399 (1989).

Assignment of a visually impaired teacher to a school more distant than the one to which the teacher had been assigned previously did not violate O.C.G.A. Ch. 6A, T. 34, when the teacher produced no evidence to show the teacher was treated any differently from any able-bodied employee and the teacher testified to being unwilling to move from the teacher's apartment to one closer to the teacher's new school and that the teacher would not consider taking public transportation. Allen v. Bergman, 198 Ga. App. 57, 400 S.E.2d 347 (1990), cert. denied, 198 Ga. App. 897, 400 S.E.2d 347 (1991).

Cited in Veal v. Memorial Hosp., 894 F. Supp. 448 (M.D. Ga. 1995).

C.J.S.

- 14A C.J.S., Civil Rights, § 722 et seq.

ALR.

- Award of front pay under state job discrimination statutes, 74 A.L.R.4th 746.

Damages and other relief under state legislation forbidding job discrimination on account of handicap, 78 A.L.R.4th 435.

Right to jury trial in action under state civil rights law, 12 A.L.R.5th 508.

Individual liability of supervisors, managers, officers or co-employees for discriminatory actions under state Civil Rights Act, 83 A.L.R.5th 1.

Right of prevailing plaintiffs to recover attorneys' fees under § 706(k) of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e5(k)), 132 A.L.R. Fed. 345.

Right of prevailing defendant to recover attorney's fees under § 706(k) of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e-5 (k)), 134 A.L.R. Fed 161.

Reductions to back pay awards under Title VII of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e et seq.), 135 A.L.R. Fed 1.

Period of time covered by back pay award under Title VII of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e et seq.), 137 A.L.R. Fed 1.

Allowance and rates of interest on backpay award under Title VII of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e et seq.), 138 A.L.R. Fed 1.

Factors or conditions in employment discrimination cases said to justify increase in attorney's fees awarded under § 706(k) of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e-5(k)), 140 A.L.R. Fed 301; 151 A.L.R. Fed. 77.

Availability of nominal damages in action under Title VII of Civil Rights Act of 1964 (42 U.S.C.S. § 2000e et seq.), 143 A.L.R. Fed. 269.

Availability of damages under § 504 of the Rehabilitation Act (29 U.S.C.A. § 794) in actions against persons or entities other than federal government or agencies thereof, 145 A.L.R. Fed. 353.

Additions to back pay awards under Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e et seq.), 146 A.L.R. Fed. 403.

Punitive damages in actions for violations of Title VII of the Civil Rights Act of 1964 (42 U.S.C.A. § 1981a; 42 U.S.C.A. § 2000e et seq.), 150 A.L.R. Fed. 601.

Award of compensatory damages under 42 U.S.C.A. § 1981a for violation of Title VII of Civil Rights Act of 1964, 154 A.L.R. Fed. 347.

Propriety of treating separate entities as one for determining number of employees required by Title VII of Civil Rights Act of 1964 (42 U.S.C.A. § 2000e(b)) for action against "employer", 160 A.L.R. Fed. 441.

Employment for indefinite period is terminable at will of either party.

- Employee under a contract of hiring indefinite in its duration may lawfully be discharged at the will of an employer with no cause of action for breach of contract. Lambert v. Georgia Power Co., 181 Ga. 624, 183 S.E. 814 (1936); Snyder v. Savannah Union Station Co., 85 Ga. App. 851, 70 S.E.2d 382 (1952).

Indefinite hiring may be terminated at will by either party, and a rule of the employer that an employee will be discharged if the employee's wages are garnished by a creditor does not alter the situation. Elliott v. Delta Air Lines, 116 Ga. App. 36, 156 S.E.2d 656 (1967).

In the absence of a controlling contract between the parties, employment for an indefinite period - a "permanent job" - is terminable at the will of either party, and a discharge in such circumstances affords no cause of action for breach of contract. Land v. Delta Air Lines, 130 Ga. App. 321, 203 S.E.2d 316 (1973).

Contract for permanent employment is a contract to continue indefinitely, and is terminable at any time by either of the parties. Ely v. Stratoflex, Inc., 132 Ga. App. 569, 208 S.E.2d 583 (1974).

Executory contract of service for no fixed period of time is obviously too indefinite to be capable of enforcement, and it is only by a fiction that the courts are enabled to hold that an engagement at a fixed salary per month, but with no stipulation as to its duration, is a legally binding contract for one month's employment at the agreed wage; but the employment, after the expiration of the first month, being indefinite as to its duration, may be terminated at the will of either party. Floyd v. Lamar Ferrell Chevrolet, Inc., 159 Ga. App. 756, 285 S.E.2d 218 (1981).

Indefinite hiring may be terminated at will by either party, with or without cause, and there is no cause of action against an employer for an alleged wrongful termination. Meeks v. Pfizer, Inc., 166 Ga. App. 815, 305 S.E.2d 497 (1983); Stanford v. Paul W. Heard & Co., 240 Ga. App. 869, 525 S.E.2d 419 (1999).

In Georgia, an "at will" employee may be removed with or without cause, and regardless of motive. Morast v. Lance, 631 F. Supp. 474 (N.D. Ga. 1986), aff'd, 807 F.2d 926 (11th Cir. 1987).

No executory obligations are created.

- If the contract in a dispute over failure to promote on basis of seniority was for an indefinite term and was terminable at will, no claim for failure to promote can be maintained as it is the general rule that a hiring indefinite as to time is terminable at the will of either party and creates no executory obligations. Murphine v. Hospital Auth., 151 Ga. App. 722, 261 S.E.2d 457 (1979).

Ante litem notice not required for suit under Whistleblower Act.

- City employee who filed suit under the Georgia Whistleblower Act, O.C.G.A. § 45-1-4, seeking money damages, among other remedies, was not required to provide written notice of the employee's claim within six months of the alleged retaliation under the municipal ante litem notice statute, O.C.G.A. § 36-33-5, because the claim was not a negligence claim. West v. City of Albany, 300 Ga. 743, 797 S.E.2d 809 (2017).

Effect of procedural default.

- By deeming claims of wrongful termination and slander as admitted due to a defendant's default in the action for failing to answer, a trial court erred by precluding the defendant from offering evidence to contradict those claims at a hearing on damages since the well-pled allegations of the complaint failed to establish that the plaintiff was anything other than an at-will employee, as no employment contract was alleged; therefore, the plaintiff's complaint failed to state a claim for wrongful termination. Fink v. Dodd, 286 Ga. App. 363, 649 S.E.2d 359 (2007).

If no terms of contract of employment are set out, the petition must be construed as alleging that the employee was working under a contract terminable at the will of the employer. Elliott v. Delta Air Lines, 116 Ga. App. 36, 156 S.E.2d 656 (1967).

Oral contract for indefinite period.

- Oral contract of employment for an indefinite period of time is terminable at will and is not inhibited by the statute of frauds. Guinn v. Conwood Corp., 185 Ga. App. 41, 363 S.E.2d 271 (1987), cert. denied, 185 Ga. App. 910, 363 S.E.2d 271 (1988).

Oral executory promises relating to an employment contract for an indefinite period could not be enforced because the underlying employment contract, being terminable at will, was unenforceable. Marshall v. W.E. Marshall, 189 Ga. App. 510, 376 S.E.2d 393 (1988), cert. denied, 189 Ga. App. 913, 376 S.E.2d 393 (1989).

There was no exception to this section. Goodroe v. Georgia Power Co., 148 Ga. App. 193, 251 S.E.2d 51 (1978).

"Franchised contractual relationship," when it consists of an oral agreement for an indefinite period, is terminable at will. Arford v. Blalock, 199 Ga. App. 434, 405 S.E.2d 698 (1991), cert. denied, 199 Ga. App. 906, 405 S.E.2d 698 (1991), aff'd sub nom., Wilensky v. Blalock, 262 Ga. 95, 414 S.E.2d 1 (1992), overruled on other grounds Jordan v. Moses, 291 Ga. 39, 727 S.E.2d 460 (2012).

Section was inapplicable and did not bar a chief executive officer's (CEO) breach of fiduciary duty claim as the CEO had a contract for a definite term. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807, 619 S.E.2d 481 (2005).

If employment contract unenforceable, fraud claim inapplicable.

- Although fraud may not generally be predicated on statements which are promissory in nature as to future acts or events, it can be predicated on such representations when there is a present intention not to perform or a present knowledge that the future event will not occur, but such an exception has no application when the promises upon which the plaintiff relies for establishing fraud are unenforceable because the underlying employment contract, being terminable at will, is unenforceable. Taylor v. Amisub, Inc., 186 Ga. App. 834, 368 S.E.2d 791 (1988).

Executive promises pertaining to employment unenforceable.

- Employee whose employment was for an indefinite term, and for that reason was terminable at the will of the employer, had no cause of action for the employer's alleged failure to honor the terms of the employee's employment contract under the doctrine of promissory estoppel. The doctrine of promissory estoppel codified at O.C.G.A. § 13-3-44(a) has no application to enforce executory promises pertaining to employment for an indefinite term. Also, any promises upon which the employee relied to show misrepresentation were unenforceable because the employee's underlying employment contract, being terminable at will, was unenforceable. Johnson v. Metropolitan Atlanta Rapid Transit Auth., 207 Ga. App. 869, 429 S.E.2d 285 (1993).

Property interest.

- At-will employee typically does not have a reasonable expectation of continued employment sufficient to form a protectable property interest. However, a property interest does arise whenever a public employee can be terminated only for cause. Wofford v. Glynn Brunswick Mem. Hosp., 864 F.2d 117 (11th Cir. 1989); Nolin v. Douglas County, 903 F.2d 1546 (11th Cir. 1990), overruled on other grounds, 32 F.3d 1521 (11th Cir. 1994), overruled in part on other grounds, McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994), cert. denied, McKinney v. Osceola County Bd. of County Comm'rs, 513 U.S. 1110, 115 S. Ct. 898, 130 L. Ed. 2d 783 (1995).

Deputy sheriffs in a county that had not adopted a civil service program were employees at will and lacked a property interest in their employment. Zimmerman v. Cherokee County, 925 F. Supp. 777 (N.D. Ga. 1995).

Employees of federal credit unions are not public employees within the meaning of O.C.G.A. § 34-7-1. Robins Fed. Credit Union v. Brand, 234 Ga. App. 519, 507 S.E.2d 185 (1998).

Age discrimination.

- At-will employee may not sue in tort under O.C.G.A. § 51-1-6 or § 51-1-8 for wrongful discharge based upon age discrimination. Reilly v. Alcan Aluminum Corp., 272 Ga. 279, 528 S.E.2d 238 (2000).

Provisions of O.C.G.A. §§ 51-1-6 and51-1-8 do not create a civil action for age discrimination for an employee-at-will based upon a violation of either O.C.G.A. § 34-1-2 or the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. Reilly v. Alcan Aluminum Corp., 221 F.3d 1170 (11th Cir. 2000).

Summary judgment.

- Whether employment contract was created is genuine issue of material fact which would make the grant of summary judgment erroneous under O.C.G.A. § 34-7-1. Floyd v. Lamar Ferrell Chevrolet, Inc., 159 Ga. App. 756, 285 S.E.2d 218 (1981).

Cited in Odom v. Bush, 125 Ga. 184, 53 S.E. 1013 (1906); Bentley v. Smith, 3 Ga. App. 242, 59 S.E. 720 (1907); Phillips Lumber Co. v. Smith, 7 Ga. App. 222, 66 S.E. 623 (1909); Webb v. McCranie, 12 Ga. App. 269, 77 S.E. 175 (1913); Foundation Co. v. Brannen, 25 Ga. App. 120, 102 S.E. 833 (1920); Davidson v. Citizens' Bank & Trust, 46 Ga. App. 78, 166 S.E. 775 (1932); Smith v. Chicopee Mfg. Corp., 56 Ga. App. 294, 192 S.E. 481 (1937); Bailey v. Nashville, Chattanooga & St. Louis Ry., 60 Ga. App. 142, 3 S.E.2d 112 (1939); Crow v. Southern Ry., 66 Ga. App. 608, 18 S.E.2d 690 (1942); Fellton v. Orkin Exterminating Co., 92 Ga. App. 186, 88 S.E.2d 463 (1955); Campbell v. Carroll, 121 Ga. App. 497, 174 S.E.2d 375 (1970); Alexander-Seewald Co. v. Questa, 121 Ga. App. 611, 175 S.E.2d 92 (1970); Stegall v. S.S. Kresge Co., 128 Ga. App. 679, 197 S.E.2d 737 (1973); Lowe v. Royal Crown Cola Co., 132 Ga. App. 37, 207 S.E.2d 620 (1974); Kingsbury v. Exxon Co., U.S.A., 136 Ga. App. 146, 220 S.E.2d 481 (1975); Rhodes v. Levitz Furn. Co., 136 Ga. App. 514, 221 S.E.2d 687 (1975); Hill v. Delta Air Lines, 143 Ga. App. 103, 237 S.E.2d 597 (1977); West v. First Nat'l Bank, 145 Ga. App. 808, 245 S.E.2d 46 (1978); Wright v. Great Lakes Dredge & Dock Co., 156 Ga. App. 537, 275 S.E.2d 89 (1980); White v. I.T.T., 718 F.2d 994 (11th Cir. 1983); Taliaferro v. S & A Restaurant Corp., 172 Ga. App. 399, 323 S.E.2d 271 (1984); Anderberg v. Georgia Elec. Membership Corp., 175 Ga. App. 14, 332 S.E.2d 326 (1985); Morast v. Lance, 807 F.2d 926 (11th Cir. 1987); Alston v. Brown Transp. Corp., 182 Ga. App. 632, 356 S.E.2d 517 (1987); Thomason v. Mitsubishi Elec. Sales Am., Inc., 701 F. Supp. 1563 (N.D. Ga. 1988); Warren v. Crawford, 927 F.2d 559 (11th Cir. 1991); Burton v. John Thurmond Constr. Co., 201 Ga. App. 10, 410 S.E.2d 137 (1991); Johnson v. Hames Contracting, Inc., 208 Ga. App. 664, 431 S.E.2d 455 (1993); Golden v. National Serv. Indus., 210 Ga. App. 53, 435 S.E.2d 270 (1993); Jones v. Destiny Indus., Inc., 226 Ga. App. 6, 485 S.E.2d 225 (1997); Hiers v. ChoicePoint Servs., 270 Ga. App. 128, 606 S.E.2d 29 (2004).

Presumption of hiring for period stipulated for payment of wages.

- Unless there is something to the contrary in an express contract of employment, a provision merely for the payment of wages at a stipulated period raises the presumption that the hiring was for that period. National Manufacture & Stores Corp. v. Dekle, 48 Ga. App. 515, 173 S.E. 408 (1934).

Person who has been previously employed by the year or other fixed interval who is permitted to continue in the employment after the period limited by the original employment has expired will, in the absence of anything to show a contrary intention, be presumed to be employed until the close of the current interval, and upon the same terms. Such a presumed renovation of the contract from the period at which the former expired is held to arise from implied consent of the parties, and in consequence of their not having signified their intention that the agreement should terminate at the period stipulated. Whether the first hiring has its duration fixed by express or implied contract, if it be fixed in either way, the term (if not longer than one year) admits of duplication by tacit as well as express agreement. National Manufacture & Stores Corp. v. Dekle, 48 Ga. App. 515, 173 S.E. 408 (1934).

Fact that wages are payable weekly raises presumption that contract of hiring was by week. Sandt v. Mason, 208 Ga. 541, 67 S.E.2d 767 (1951).

Offer of employment at so much per month will, in the absence of anything further indicating the period of employment intended, be treated as meaning employment for a term of one month. Floyd v. Lamar Ferrell Chevrolet, Inc., 159 Ga. App. 756, 285 S.E.2d 218 (1981).

Appellant's allegations that appellant was employed by appellee for an indefinite period at a fixed monthly wage sets forth a legally binding contract for one month's employment at the agreed wage, breach of which prior to the end of the first month is actionable. Floyd v. Lamar Ferrell Chevrolet, Inc., 159 Ga. App. 756, 285 S.E.2d 218 (1981).

If the presumption under O.C.G.A. § 34-7-1 is to arise, the employment contract must provide that the "wages are payable at a stipulated period." Therefore, an annual salary provision in an employment contract will not establish the presumption unless the employee is also paid on an annual basis. If the employee is paid on a weekly, bi-monthly or monthly basis, the statement of an annual salary will not create a binding one-year contract. Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d 1491 (11th Cir. 1989).

Hiring period on basis of annual salary.

- Documents referring to an employee's annual salary do not give rise to a presumption that the employee is hired on a quarterly basis. American Std., Inc. v. Jessee, 150 Ga. App. 663, 258 S.E.2d 240 (1979).

Reference to an employee's annual salary in a written agreement merely establishes the total amount of the employee's salary during a 12-month period and does not establish a pay period requiring application of the presumption under O.C.G.A. § 34-7-1. Fortenberry v. Haverty Furn. Cos., 176 Ga. App. 360, 335 S.E.2d 460 (1985); Ikemiya v. Shibamota Am., Inc., 213 Ga. App. 271, 444 S.E.2d 351 (1994).

Period of employment deemed indefinite.

- Promise to employ a person until the employer becomes insolvent is an offer of employment for an indefinite term and is insufficient to support a cause of action for breach of an employment contract. Barker v. CTC Sales Corp., 199 Ga. App. 742, 406 S.E.2d 88 (1991), cert. denied, 199 Ga. App. 905, 406 S.E.2d 88 (1991).

Minimum period of employment specified in contract.

- When an employment contract specified that the term of employment was to be "for a period of not less than three years," the contract was not terminable at will prior to the expiration of that three year period. Wojcik v. Lewis, 204 Ga. App. 301, 419 S.E.2d 135 (1992).

If a definite minimum contract period has been established by the contract of employment, only such minimum employment period falls outside the employment at will and any future contract period comes under the employment at will. Schuck v. Blue Cross & Blue Shield of Ga., Inc., 244 Ga. App. 147, 534 S.E.2d 533 (2000).

Although an employment contract set up a two-week pay period, that provision did not define the employment term because the contract specifically stated that it "will run from October 10th, 1994 through January 10th, 1995," a three month period. Mail Adver. Sys. v. Shroka, 249 Ga. App. 484, 548 S.E.2d 461 (2001).

Breach of promise not to fire.

- Trial court did not err in finding that the terminated employees did not state a claim upon which relief could be granted for their claim that they were wrongfully discharged based on the businesses' alleged breach of a promise-not-to-fire, as the terminated employees did not show that Georgia law recognized a "freedom of contract" public policy exception to the general rule of at-will employment in Georgia that dictated that an employee was not hired for a specific period of employment and could be terminated for any or no reason. Balmer v. Elan Corp., 261 Ga. App. 543, 583 S.E.2d 131 (2003), aff'd, 278 Ga. 227, 599 S.E.2d 158 (2004).

Ambiguity.

- When an ambiguity in a contract as to the contemplated duration of a subcontractor's services remained even after application of applicable statutory rules of construction, construction of the contract was for the jury rather than the trial court. Lineberger v. Williams, 195 Ga. App. 186, 393 S.E.2d 23 (1990).

Employer may discharge employee without liability.

- When a plaintiff's employment is terminable at will, the employer, with or without cause and regardless of its motives, may discharge the employee without liability. Clark v. Prentice-Hall, Inc., 141 Ga. App. 419, 233 S.E.2d 496 (1977); Grace v. Roan, 145 Ga. App. 776, 245 S.E.2d 17 (1978); Taylor v. Foremost-McKesson, Inc., 656 F.2d 1029 (5th Cir. 1981); Hall v. Answering Serv., Inc., 161 Ga. App. 874, 289 S.E.2d 533 (1982).

Trial court's dismissal of a city employee's wrongful discharge action was proper because the complaint failed to state a claim upon which relief could be granted; the employee was an at-will employee and, pursuant to O.C.G.A. § 34-7-1 and as a matter of law, the employee could not assert a wrongful discharge claim. Reid v. City of Albany, 276 Ga. App. 171, 622 S.E.2d 875 (2005).

No actionable conspiracy out of exercising right to discharge employee.

- Granting that the allegations of the plaintiff are sufficient to sustain the conclusion of conspiracy, there could be no actionable conspiracy growing out of the exercise, in a lawful manner, of the legal right to discharge the plaintiff. Clark v. Prentice-Hall, Inc., 141 Ga. App. 419, 233 S.E.2d 496 (1977).

No actionable conspiracy arises from the authorized exercise of a legal right to discharge. Meeks v. Pfizer, Inc., 166 Ga. App. 815, 305 S.E.2d 497 (1983).

Absent a racial or other motive in violation of public policy, an employer may discharge an at will employee for any reason or no reason. Phinazee v. Interstate Nationalease, Inc., 237 Ga. App. 39, 514 S.E.2d 843 (1999).

Oral promise not to fire not enforceable.

- Noting that Georgia courts have refused to acknowledge any exceptions not encompassed by the employment at-will statute, O.C.G.A. § 34-7-1, a court applied the well-settled doctrines of Georgia law and held that an employer's oral promise not to fire employees for cooperating with government inspection did not modify the terms of their at-will employment relationship and did not create an enforceable contract. Balmer v. Elan Corp., 278 Ga. 227, 599 S.E.2d 158 (2004).

Impermissible discharge on grounds of public policy.

- At-will employee cannot maintain a successful wrongful discharge suit against an employer on grounds of public policy. Jellico v. Effingham County, 221 Ga. App. 252, 471 S.E.2d 36 (1996).

Employment terminable at will.

- Appellant's employment was terminable at will and the evidence clearly shows that appellant was discharged by one who had the authority to do so, appellant's lengthy allegations as to improper motive for firing are legally irrelevant and present no genuine issues of material fact. Hall v. Answering Serv., Inc., 161 Ga. App. 874, 289 S.E.2d 533 (1982).

As an at-will employee terminable with or without cause pursuant to O.C.G.A. § 34-7-1, a plaintiff employee had no enforceable employment contract rights with which to interfere and, thus, had no basis for a claim that the defendant president tortuously interfered with the employee's employment for an insurance company. Culpepper v. Thompson, 254 Ga. App. 569, 562 S.E.2d 837 (2002).

Because under Georgia law, absent contractual or statutory exception, employment is terminable at will by either party, pursuant to O.C.G.A. § 34-7-1, an employee of a state university was an at-will employee with no reasonable expectation in continued employment that would give rise to a property interest; therefore, because the employee did not have an identifiable property interest in the employment, the employee could not prevail on a claim for denial of procedural due process. Braswell v. Bd. of Regents of the Univ. Sys. of Ga., 369 F. Supp. 2d 1362 (N.D. Ga. Apr. 26, 2005).

Despite the fact that a teacher's contract provided for a yearly salary, such only referred to the pay system and any presumption that such contract was for one year was rebutted by the next sentence of the contract that, "should employment be terminated prior to the end of the school year, the termination pay will be prorated on the number of days worked." Taylor v. Calvary Baptist Temple, 279 Ga. App. 71, 630 S.E.2d 604 (2006).

City employee was an at-will employee because the record did not show that the employee was hired for a definite term of employment, and the city's personnel policies and practices were legally insufficient to create an implied contract for a definite term of employment. Goddard v. City of Albany, 285 Ga. 882, 684 S.E.2d 635 (2009).

In a former employer's suit to enforce noncompetition and nonsolicitation clauses, summary judgment was properly granted in favor of the employer on a former employee's wrongful termination claim; as an at-will employee, pursuant to O.C.G.A. § 34-7-1, the employee had no claim for wrongful termination. H&R Block Eastern Enters. v. Morris, 606 F.3d 1285 (11th Cir. 2010).

Probationary period.

- When contract between parties provided that first year of employment was a probationary period, and terms of contract did not specify duration of employment, employer had right to discharge employee without cause. Gunn v. Hawaiian Airlines, 162 Ga. App. 474, 291 S.E.2d 779 (1982).

Promise of lifetime employment unenforceable.

- Employment in Georgia is generally considered to be at will, and a trial court properly dismissed an employee's breach of contract suit based on a termination of employment; since an alleged promise of lifetime employment was unenforceable, the employee's claim of fraud could not have been predicated on that alleged promise. Jenkins v. Georgia Dep't of Corr., 279 Ga. App. 160, 630 S.E.2d 654 (2006).

Employee's investigations into company activities.

- O.C.G.A. § 34-7-1 will not allow action for wrongful discharge by a terminable-at-will employee, despite allegations by the employee that the employee's discharge was caused by the employee's investigations into possibly criminal company activities. Taylor v. Foremost-McKesson, Inc., 656 F.2d 1029 (5th Cir. 1981).

Oral contract between attorney and client.

- Trial court's denial of a client's summary judgment motion was reversed as the oral contract between an attorney and the client was unenforceable in that: (1) there was no definition of what was to be considered the ultimate or logical conclusion of any given case assigned to the attorney, nor were there standards for determining if the attorney "didn't do the job"; (2) there was no stated duration of the agreement, and the public policy of Georgia was clear that, absent a definite term of employment, the contract was terminable at will under O.C.G.A. § 34-7-1; and (3) the attorney's claimed damages, the attorney's hourly rate times the number of hours it would have taken the attorney to bring each case to its ultimate or logical conclusion, were speculative and not objectively ascertainable from the oral contract. Ga. Farm Bureau Mut. Ins. Co. v. Croley, 263 Ga. App. 659, 588 S.E.2d 840 (2003).

Exercising workers' compensation rights.

- There is no public policy exception to an employer's right to discharge an employee at will when the right is exercised in retaliation for the employee's assertion of the employee's rights under the Workers' Compensation Act. Evans v. Bibb Co., 178 Ga. App. 139, 342 S.E.2d 484 (1986).

Termination due to application for disability benefits.

- Even if an employer's decision to separate an employee from the employee's employment was prompted by the employee's application for full-time disability benefits, this would not give rise to a cause of action for wrongful termination. Bendix Corp. v. Flowers, 174 Ga. App. 620, 330 S.E.2d 769 (1985).

Termination due to pregnancy.

- Summary judgment for employer was affirmed in former at-will employee's action for "wrongful discharge" allegedly based on employee's pregnancy, as there was no existing "public policy" exception for termination of at-will employees because of gender in general or pregnancy in specific. Borden v. Johnson, 196 Ga. App. 288, 395 S.E.2d 628 (1990).

Discharge for violations of employment directive.

- When an employee manual provided that dismissal "shall result from a serious infraction of a company rule involving misconduct such as . . .", it was neither the intent nor the effect of the manual to limit terminations to infractions listed but rather the list of infractions was for illustrative purposes only so that the employee had notice of the types of offenses which the company believed were of such a serious nature that termination would be warranted. Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876, 354 S.E.2d 204 (1987).

Company handbook.

- Even if company handbook was considered to be a contract, as it was for no specific term, employees remained as at will and their employment was terminable at will. Jackson v. Nationwide Credit, Inc., 206 Ga. App. 810, 426 S.E.2d 630 (1992).

Negligent hiring and retention claim.

- Employee's claim of negligent hiring and retention could not be used to circumvent the employment-at-will doctrine since the employment was for an indefinite period and was terminable at the will of either party to the employment relationship. Dong v. Shepeard Community Blood Ctr., 240 Ga. App. 137, 522 S.E.2d 720 (1999).

Violation of termination procedures.

- The fact that an at-will employee had notice of certain policies and procedures regarding discipline and termination of employees which the employee alleges were not followed in the employee's discharge would not give rise to an action for wrongful termination. Garmon v. Health Group of Atlanta, Inc., 183 Ga. App. 587, 359 S.E.2d 450 (1987).

Evidence of wrongful discharge.

- Evidence that a former fellow employee, who did not have the absolute right to discharge without consulting superiors, attempted to suborn perjury from an employee, asking the employee to lie at a deposition hearing with reference to a lawsuit then in progress involving the employer, and thereafter threatened the employee that "he would never expect to get anything out of this company again," and that subsequently the employee was terminated, supported the liability of that fellow employee for wrongful discharge. Troy v. Interfinancial, Inc., 171 Ga. App. 763, 320 S.E.2d 872 (1984).

President of limited liability company with contract.

- Trial court erred in entering a judgment on the pleadings for a limited liability company, its founder, and a corporation, as O.C.G.A. § 34-7-1 did not bar the president's breach of fiduciary duty claim since the president had a contract for a definite term; further, the founders were bound by the contract, which contained a clause purporting to establish a fiduciary relationship. Tidikis v. Network for Med. Communs. & Research, LLC, 274 Ga. App. 807, 619 S.E.2d 481 (2005).

Employee's suit on contract for compensation due.

- Parol agreement in a contract to begin in praesenti for an indefinite period, terminable at will, was not inhibited by the statute of frauds; and when an employee sued on the contract for the amount of compensation due the employee, based upon services actually performed by the employee up to the time of the employee's discharge, and not for damages or for compensation for services not performed or for any breach of contract, it was not necessary that the employee sue on a quantum meruit for services actually performed. Brazzeal v. Commercial Cas. Ins. Co., 51 Ga. App. 471, 180 S.E. 853 (1935).

When there is a contract of employment and the employee thereunder sues on the contract for the amount of compensation due the employee, based upon services actually performed by the employee up to the time of the employee's discharge, and not for damages or for compensation for services not performed or for any breach of contract, the contract is conclusive on the matter and it is not necessary that the plaintiff sue on a quantum meruit for services actually performed. Van Houten v. Standard Fed. Sav. & Loan Ass'n, 93 Ga. App. 774, 92 S.E.2d 731 (1956).

Oral contract of employment at will for an indefinite time, even though it may not be performed within one year, is not within the statute of frauds; and when the employee has actually performed services thereunder the employee may recover of the employer the compensation due the employee for the services rendered. Trade City G.M.C., Inc. v. May, 154 Ga. App. 371, 268 S.E.2d 421 (1980).

Trial court did not err by granting summary judgment to the defendant, a former employer, on the plaintiff's claims that the plaintiff was wrongfully terminated, that the plaintiff was entitled to one year's salary, that the plaintiff was entitled to participate in the profit sharing plan, or that the plaintiff was entitled to purchase stock in the company, when the record was clear that the plaintiff had no contract for a stated period. The mere reference to the position's annual salary is not sufficient to invoke the presumption set forth in O.C.G.A. § 34-7-1. Foreman v. Eastern Foods, Inc., 195 Ga. App. 332, 393 S.E.2d 695 (1990).

Damages for wrongful discharge.

- When an employee is wrongfully discharged before the end of the employee's term and elects to sue for a breach of the contract of employment, the employee may do so immediately and claim any special injury which the employee may have sustained in consequence of the breach; in such an action the measure of damages is the actual loss from the breach of the contract, and, in estimating the amount, all facts down to the time of the trial may be considered. Sandt v. Mason, 208 Ga. 541, 67 S.E.2d 767 (1951).

No right of action for federal credit union employees.

- Federal credit union employees had no right of action for wrongful termination since they had no vested property right under federal law, and there was no state law public exception to the at-will doctrine. Robins Fed. Credit Union v. Brand, 234 Ga. App. 519, 507 S.E.2d 185 (1998).

Length of notice or compensation.

- Georgia law does not provide for a specific length of time or compensation when an employee is discharged; the length of notice or compensation when discharged would depend entirely upon the agreement or contract between the employer and employee. 1948-49 Op. Att'y Gen. p. 242.

The length of employment, wages therefor and termination of employment depends entirely upon the contract between parties. 1948-49 Op. Att'y Gen. p. 242.

Am. Jur. 2d.

- 27 Am. Jur. 2d, Employment Relationship, §§ 8 et seq., 26 et seq.

Defending Wrongful Discharge Cases, 36 Am. Jur. Trials 419.

ALR.

- Constitutionality of law regulating right to tips as between master and servant, 3 A.L.R. 310.

Duration of contract of hiring which specifies no term, but fixes compensation at a certain amount per day, week, month, or year, 11 A.L.R. 469; 100 A.L.R. 834; 161 A.L.R. 706.

Payment as condonation preventing discharge of servant for breach of duty, 44 A.L.R. 532.

Injunction against discharge of employee, 44 A.L.R. 1443.

Negligence or incompetency as a ground for discharge of an employee, 49 A.L.R. 472.

Changes in personnel or conditions of business as justification for termination of contract of employment, 59 A.L.R. 294.

Expenses incurred in seeking or in obtaining other employment as element of damages in an action for wrongful discharge of employee, 84 A.L.R. 171.

Specification in employment contract of grounds or causes of discharge as exclusive of other grounds or causes, 100 A.L.R. 507.

Servant's right to compensation for extra work or overtime, 107 A.L.R. 705.

Operation of negative or restrictive covenant in contract of employment for a specific period, as extended by continuance in the employment after the expiration of that period, 163 A.L.R. 405.

Validity, construction, and effect of statutory or contractual provision in, government construction contract referring to Secretary of Labor questions respecting wage rates or classification of employees of contractor, 163 A.L.R. 1300.

Right of employer to terminate contract because of employee's illness or physical incapacity, 21 A.L.R.2d 1247.

Oral contract for personal services so long as employee is able to continue in work, to do satisfactory work, or the like, as within statute of frauds relating to contracts not to be performed within year, 28 A.L.R.2d 878.

Power of corporate officer or agent to hire employees for life, 28 A.L.R.2d 929.

Discharge from private employment on ground of political views or conduct, 51 A.L.R.2d 742; 29 A.L.R.4th 287, 38 A.L.R.5th 39.

What law governs employee's right to damages for wrongful discharge, 61 A.L.R.2d 917.

Employer's damages for breach of employment contract by employee's terminating employment, 61 A.L.R.2d 1008.

Recovery of damages by employee wrongfully discharged before expiration of time period fixed in employment contract as embracing entire term of contract or as limited to those damages sustained up to time of trial, 91 A.L.R.2d 682.

Termination by principal of distributorship contract containing no express provision for termination, 19 A.L.R.3d 196.

Employer's termination of professional athlete's services as constituting breach of employment contract, 57 A.L.R.3d 257.

Validity and duration of contract purporting to be for permanent employment, 60 A.L.R.3d 226.

Right of corporation to discharge employee who asserts rights as stockholder, 84 A.L.R.3d 1107.

Modern status as to duration of employment where contract specifies no term but fixes daily or longer compensation, 93 A.L.R.3d 659.

Liability for discharging at-will employee for refusing to participate in, or for disclosing, unlawful or unethical acts of employer or coemployees, 9 A.L.R.4th 329.

Discharge from employment on ground of political views or conduct as affecting right to unemployment compensation, 29 A.L.R.4th 287, 38 A.L.R.5th 39.

Judicial review of termination of pastor's employment by local church or temple, 31 A.L.R.4th 851.

Recovery for discharge from employment in retaliation for filing workers' compensation claim, 32 A.L.R.4th 1221.

Right to discharge allegedly "at-will" employee as affected by employer's promulgation of employment policies as to discharge, 33 A.L.R.4th 120.

Damages recoverable for wrongful discharge of at-will employee, 44 A.L.R.4th 1131.

Liability for retaliation against at-will employee for public complaints or efforts relating to health or safety, 75 A.L.R.4th 13.

Liability for discharge of at-will employee for refusal to submit to drug testing, 79 A.L.R.4th 105.

Effectiveness of employer's disclaimer of representations in personnel manual or employee handbook altering at-will employment relationship, 17 A.L.R.5th 1.

Pre-emption by workers' compensation statute of employee's remedy under state "whistleblower" statute, 20 A.L.R.5th 677.

Pre-emption of wrongful discharge cause of action by civil rights laws, 21 A.L.R.5th 1.

Liability for breach of employment severance agreement, 27 A.L.R.5th 1.

After-acquired evidence of employee's misconduct as barring or limiting recovery in action for wrongful discharge, 34 A.L.R.5th 699.

Liability for discharge of employee from private employment on ground of political views or conduct, 38 A.L.R.5th 39.

Wrongful discharge based on public policy derived from professional ethics codes, 52 A.L.R. 5th 405.

Negligent discharge of employee, 53 A.L.R.5th 219.

Wrongful discharge based on employer's fraternization policy, 71 A.L.R.5th 257.

Federal pre-emption of whistleblower's state-law action for wrongful retaliation, 99 A.L.R. Fed. 775.

Liability for violations of wage payment provisions.

- Consultant employed by a labor pool was not an "employer" under Georgia law and, therefore, was not subject to liability for violations of O.C.G.A. §§ 34-7-2 and34-7-3. Sakas v. Settle Down Enters., Inc., 90 F. Supp. 2d 1267 (N.D. Ga. 2000).

Action claiming forfeiture based on clause in incentive contract.

- Trial court properly granted judgment on the pleadings to companies in a former employee's action alleging violations of O.C.G.A. § 34-7-2 because the employee did not file an action claiming that a forfeiture clause in a stock incentive plan constituted a violation of wage requirements within the relevant two-year statute of limitations provided by O.C.G.A. § 9-3-22, and the action was therefore time barred. Milhollin v. Salomon Smith Barney, Inc., 272 Ga. App. 267, 612 S.E.2d 72 (2005).

Cited in Shirley v. State, 208 Ga. 614, 68 S.E.2d 597 (1952).

Am. Jur. 2d.

- 27 Am. Jur. 2d, Employment Relationship, § 55 et seq.

ALR.

- Right of employee to bonus as affected by termination of employment before bonus becomes payable, 28 A.L.R. 346.

Corporation's payment of bonus to officers or employees, 88 A.L.R. 751; 164 A.L.R. 1125.

Employee's or agent's acceptance of bonus, gratuity, or other personal benefit from one with whom he deals on employer's or principal's account as affecting his right to recover wages, salary, or commissions, 102 A.L.R. 1115.

Statutes prescribing medium of payment of wages or salary as prohibiting compensation by corporate stock or other interest in business, 137 A.L.R. 846.

Validity, construction, and effect of statutory or contractual provision in, government construction contract referring to Secretary of Labor questions respecting wage rates or classification of employees of contractor, 163 A.L.R. 1300.

Validity, construction, and effect of state laws requiring payment of wages on resignation of employee immediately or within specified period, 11 A.L.R.5th 715.

Validity, construction, and effect of state laws requiring payment of wages on discharge of employee immediately or within specified period, 18 A.L.R.5th 577.

Employer's liability to employee or agent for injury or death resulting from assault or criminal attack by third person, 40 A.L.R.5th 1.

Liability for violations of wage payment provisions.

- Consultant employed by a labor pool was not an "employer" under Georgia law and, therefore, was not subject to liability for violations of O.C.G.A. §§ 34-7-2 and34-7-3. Sakas v. Settle Down Enters., Inc., 90 F. Supp. 2d 1267 (N.D. Ga. 2000).

ALR.

- Validity, construction, and effect of statutory or contractual provision in, government construction contract referring to Secretary of Labor questions respecting wage rates or classification of employees of contractor, 163 A.L.R. 1300.

Validity, construction, and effect of state laws requiring payment of wages on resignation of employee immediately or within specified period, 11 A.L.R.5th 715.

Validity, construction, and effect of state laws requiring payment of wages on discharge of employee immediately or within specified period, 18 A.L.R.5th 577.

Payment to executor in representative capacity.

- While payment to the surviving spouse or guardian of a minor child is permissible, it is not recommended; payment should be made to the executor in the executor's representative capacity in order that the estate be administered in a more orderly fashion. 1965-66 Op. Att'y Gen. No. 66-208. (See also 1986 Op. Att'y Gen. 86-41).

Surviving spouse in state hospital.

- Earnings due a deceased state employee are payable to a widow if less than $2,500.00 even though the widow is in a state hospital. 1962 Op. Att'y Gen. p. 459.

Cap on payment owed to deceased employee.

- There is no longer a cap on the amount of accrued but unpaid wages, or other sums owing a deceased employee, which the Board of Regents may, at its option, pay directly to the surviving spouse of the deceased employee under O.C.G.A. § 34-7-4. 1986 Op. Att'y Gen. No. 86-41.

ALR.

- Right of employee to bonus as affected by termination of employment before bonus becomes payable, 28 A.L.R. 346.

Constitutionality of retroactive statute providing compensation for death in service of state, 28 A.L.R. 1100; 126 A.L.R. 102.

Scope and effect of statutory provision extending debtors' exemptions to claims, or proceeds of claims, for personal injuries or death, 62 A.L.R. 1004; 116 A.L.R. 1481.

Income tax: employer's payment to widow of employee as taxable income of widow, 95 A.L.R.2d 520.

Rights in survival benefits under public pension or retirement plan as between designated beneficiary and heirs, legatees, or personal representative of deceased employee, 5 A.L.R.3d 644.

What constitutes duress rendering employee's release of employer or former employer subject to avoidance, 30 A.L.R.4th 294.

Law reviews.

- For survey article on labor and employment law for the period from June 1, 2002 to May 31, 2003, see 55 Mercer L. Rev. 303 (2003).

PEO was not liable to employee after contract terminated.

- Professional employer organization (PEO) could qualify as an employer of one of its provided employees under Georgia law; however, a PEO was not liable to a discharged employee for a pay period that occurred after the PEO had terminated its contract with the restaurant group the employee worked for. The PEO was not unjustly enriched because the employee did not perform services for the PEO, and the PEO was not fully paid by the restaurant group. Coleman v. Oasis Outsourcing, Inc., F.3d (11th Cir. July 8, 2019)(Unpublished).

Am. Jur. 2d.

- 27 Am. Jur. 2d, Employment Relationship, § 5.

Duties of master.

- As to place, appliances, instrumentalities, and fellow servants, the law places upon the master a personal or positive, sometimes called nondelegable, duty to provide for the employer's servant. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206, 45 S.E.2d 280 (1947).

Nondelegable duty.

- Duty required by this section is nondelegable. Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).

Restatement of common law.

- This section restated common-law care required of a master to a servant. Scott v. Crescent Tool Co., 306 F. Supp. 884 (N.D. Ga. 1969).

Workers' Compensation Act provides exclusive remedy.

- Employee could not bring a separate action against the employer independent of the exclusivity provisions of the Workers' Compensation Act (O.C.G.A. Ch. 9, T. 34) on the ground that the employer concealed work place hazards in violation of O.C.G.A. § 34-7-20, since the Act makes no statutory exception to the exclusive remedy provisions. Dugger v. Miller Brewing Co., 199 Ga. App. 850, 406 S.E.2d 484 (1991), cert. denied, 199 Ga. App. 905, 406 S.E.2d 484 (1991).

Duty of care inapplicable to selection of independent contractors.

- Statutory duty to exercise ordinary care in the selection of employees applies, by definition, to employees and not to those hired as independent contractors. Mason v. Gracey, 189 Ga. App. 150, 375 S.E.2d 283 (1988).

Contractee/contractor relationship.

- Contractee has the right to rely on the presumption that a contractor will discharge the legal duties owing to the contractor's employee. Hodge v. United States, 310 F. Supp. 1090 (M.D. Ga. 1969), aff'd, 424 F.2d 545 (5th Cir. 1970).

Employer's safety officer shares employer's statutory immunity.

- In a contract with a subcontractor, as a person who was designated as the safety officer had the duty to supervise and inspect only in the person's capacity as the employer's representative but was not a party to the contract, the person shared statutory tort immunity under the Workers' Compensation Act (O.C.G.A. § 34-9-11) with the employer. Pardue v. Ruiz, 263 Ga. 146, 429 S.E.2d 912 (1993).

Stating cause of action.

- In suits for injuries arising from the negligence of the employer in failing to comply with the duties imposed by this section, the employee's petition in order to set forth a cause of action must set out issuable facts constituting not only negligence on the part of the employer, causing the injuries, but also due care on the part of the employee; and it must also appear from the allegations that the injured employee did not know, and had no equal means of knowing, all that which is charged as negligence to the employer, and by the exercise of ordinary care could not have known. A.F. King & Son v. Simmons, 107 Ga. App. 628, 131 S.E.2d 214 (1963).

Injury as natural and probable consequence of negligence.

- Injury to a servant must be the natural and probable consequence of an employer's negligence; such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from the wrongdoer's act. Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).

Equal means of knowing danger.

- In a suit by a servant for an injury arising from the negligence of the master in failing to furnish proper machinery or appliances or a safe place of work, the servant, to be entitled to recover, must show, among other things, that the servant did not have equal means with the master of knowing of the danger. Abercrombie v. Ivey, 59 Ga. App. 296, 200 S.E. 551 (1938).

Action brought under this section was one for negligence on the part of the master, and when it appears from the evidence that the servant has equal means with the master of knowing of the defects in machinery and the dangers of employment, and the danger is as obvious to the servant as it is to the master, the servant is not entitled to recovery, notwithstanding any assurances of safety by the master. Swails v. Carpenter, 112 Ga. App. 117, 144 S.E.2d 182 (1965).

Violation not negligence per se.

- Provisions of this section were too general and abstract for their violation by a master or employer to constitute negligence per se. A.F. King & Son v. Simmons, 107 Ga. App. 628, 131 S.E.2d 214 (1963).

Limited liability.

- Liability of a master to a servant for negligence is strictly limited. Bray v. Westinghouse Elec. Corp., 102 Ga. App. 803, 117 S.E.2d 919 (1960).

Assumption of risk.

- Employee does not ordinarily assume the risk of negligence by an employer. Louisville & N.R.R. v. Crapps, 62 Ga. App. 437, 8 S.E.2d 413 (1940).

Provision of that section of former Code 1933, § 66-403 (see now O.C.G.A. § 34-7-43) which abolished the defense of the assumption of risk when there had been a violation by the common carrier of any statute enacted for the safety of the employees had reference to statutes specifically applicable to the operations and equipment of such carriers and was not intended to, and cannot properly, apply to the provisions of former Code 1933, § 66-301 (see now O.C.G.A. § 34-7-20). Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).

Employee has no absolute right of recovery but assumes ordinary risks of the employee's employment. Scott v. Crescent Tool Co., 306 F. Supp. 884 (N.D. Ga. 1969).

Denial of the employer's motion for summary judgment was reversed because any alleged defects in the tractor tire or in removing the tire were known to the employee who attempted to remove the tire on the employee's own, spent hours attempting to do so, encountering difficulty, and used various methods and tools to remove the tire before the employee apparently finally did so using a tool not provided by the employer. Smith v. Found, 343 Ga. App. 816, 806 S.E.2d 287 (2017), cert. denied, 2018 Ga. LEXIS 374 (Ga. 2018).

Standing in front of tractor operated by inexperienced driver.

- Employee who sued employer for personal injuries should have been aware that standing in front of a large farming tractor, parked on an incline, while a person wholly inexperienced in operating the machinery started the tractor and "eased" the clutch out, was dangerous and was not entitled to recover against the employer as a matter of law. Clayton v. Larisey, 190 Ga. App. 512, 379 S.E.2d 789 (1989).

Negligent hiring and retention claim.

- Employee's claim of negligent hiring and retention could not be used to circumvent the employment-at-will doctrine since the employment was for an indefinite period and was terminable at the will of either party to the employment relationship. Dong v. Shepeard Community Blood Ctr., 240 Ga. App. 137, 522 S.E.2d 720 (1999).

Because an employee's discrimination and retaliation claims against an employer failed on summary judgment, the derivative claim of negligent retention under O.C.G.A. § 34-7-20 also could not be sustained. Ekokotu v. Boyle, F.3d (11th Cir. Sept. 24, 2008)(Unpublished).

A Plaintiff former employee's negligent retention claim against the defendant former employer failed because it was derivative of the meritless harassment claims, which had failed under the subjective prong of the analysis as the conduct was relatively infrequent with only a few dozen comments or actions over 11 months, and rude and boorish behavior fell short of describing severe and pervasive harassment. Guthrie v. Waffle House, Inc., F.3d (11th Cir. Feb. 3, 2012)(Unpublished).

Former employee failed to establish negligent retention and hiring claim because there was no evidence that could lead a reasonable trier of fact to believe the employer was aware of any employees' past or prior conduct that would lead the employer to believe the employee could be harassed by the employee's supervisor and/or coworkers. Madrid v. Homeland Sec. Solutions Inc., 141 F. Supp. 3d 1351 (M.D. Ga. 2015).

Employment of minor.

- Child under age 14 assumes only such ordinary risks of employment as the child is capable of appreciating and understanding, and a master who, personally or through an authorized agent, directs such a child to do an act which, if performed according to the means and method provided by the master, would be attended with danger, owes the duty of warning the child of the dangers incident to its performance, and in doing so must take into consideration the child's incapacity to appreciate and understand danger. The duty incumbent upon the child is to exercise due care according to the child's age and the child's own actual capacity, rather than the ordinary care exacted by the general rule of every prudent person. Moore v. Ross, 41 Ga. App. 509, 153 S.E. 575 (1930).

Since a minor 12 years of age does not as a matter of law possess the capacity to appreciate and apprehend dangers which are ordinarily patent and obvious to adult persons, an adult person, in ordering a minor of that age as a servant to work at a place and under circumstances when the minor is exposed to a danger which is patent and obvious to the employer, may in so employing the minor, be guilty of negligence. Jordan v. Batayias, 53 Ga. App. 538, 186 S.E. 451 (1936).

Detour from duties.

- Servant may not wander at will to out of the way or dangerous places on premises, or use parts for purposes wholly disconnected from, and in no way pertaining to, the business in hand or the objects of the servant's employment; and if in doing so the servant is injured, the liability of the master is no greater than it would be to a mere licensee. Austin v. Henry Grady Hotel Co., 58 Ga. App. 861, 200 S.E. 466 (1938).

Duty owed to volunteers.

- 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. Callaham v. Carlson, 85 Ga. App. 4, 67 S.E.2d 726 (1951).

Action for damages against employer.

- If the workers' compensation law does not apply to an "occupational disease" caused by injuries which are not the result of an accident and are not compensable under the provisions of the chapter, the employee may maintain an ordinary or common-law action for damages against the employer, provided a cause of action exists in the employee's favor under the law relating to the liability of a master, independently of the Workmen's Compensation Act (see now O.C.G.A. § 34-9-1 et seq.). Covington v. Berkeley Granite Corp., 182 Ga. 235, 184 S.E. 871, answer conformed to, 53 Ga. App. 269, 185 S.E. 386 (1936).

When a fast-food restaurant cashier struck a customer, then got into a fight with the customer, customer's premises liability claim against the restaurant failed; restaurant did not have knowledge that the cashier would engage in such conduct because the cashier had indicated in a job application that the cashier had not been convicted of a felony, and during three months that the cashier worked at the restaurant prior to the altercation, there was no evidence that the cashier ever argued with, much less struck, customers. Dowdell v. Krystal Co., 291 Ga. App. 469, 662 S.E.2d 150 (2008), cert. denied, 2008 Ga. LEXIS 787 (Ga. 2008).

Questions for jury resolution.

- Ordinarily, what constitutes ordinary care, or the lack of it, whether a servant assumed a risk which caused the injury, and similar questions, are mixed issues of law and fact peculiarly for jury resolution, and to some extent must be based on inferences to be drawn from the evidence. Jones v. Aaron, 124 Ga. App. 738, 186 S.E.2d 132 (1971).

Cited in King Mfg. Co. v. Walton, 1 Ga. App. 403, 58 S.E. 115 (1907); King v. Seaboard Air-Line Ry., 1 Ga. App. 88, 58 S.E. 252 (1907); Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308, 58 S.E. 524 (1907); Seaboard Air-Line Ry. v. Chapman, 4 Ga. App. 706, 62 S.E. 488 (1908); Brown v. Rome Mach. & Foundry Co., 5 Ga. App. 142, 62 S.E. 720 (1908); Hubbard v. Macon Ry. & Light Co., 5 Ga. App. 223, 62 S.E. 1018 (1908); Southern Bell Tel. & Tel. Co. v. Covington, 139 Ga. 566, 77 S.E. 382 (1913); Rome Scale Mfg. Co. v. Harvey, 15 Ga. App. 381, 83 S.E. 434 (1914); Whitehurst v. Standard Oil Co., 8 F.2d 728 (5th Cir. 1925); Flippin v. Central of Ga. Ry., 35 Ga. App. 243, 132 S.E. 918 (1926); Fulton Bakery, Inc. v. Williams, 37 Ga. App. 780, 141 S.E. 922 (1928); Southern Ry. v. Jenkins, 39 Ga. App. 585, 147 S.E. 800 (1929); Tanner v. Louisville & N.R.R., 45 Ga. App. 734, 165 S.E. 761 (1932); Brannan v. City of Brunswick, 49 Ga. App. 62, 174 S.E. 186 (1934); Estridge v. Hanna, 55 Ga. App. 159, 189 S.E. 364 (1936); Paul v. Georgia R.R. & Banking Co., 60 Ga. App. 461, 4 S.E.2d 99 (1939); Story v. Crouch Lumber Co., 61 Ga. App. 210, 6 S.E.2d 86 (1939); Kidd v. Williamson, 61 Ga. App. 890, 8 S.E.2d 590 (1940); Davis v. Georgia Coating Clay Co., 63 Ga. App. 265, 11 S.E.2d 60 (1940); Daugherty v. Summerall, 64 Ga. App. 638, 13 S.E.2d 705 (1941); Harris v. Price, 95 Ga. App. 521, 98 S.E.2d 118 (1957); Martin v. Henson, 95 Ga. App. 715, 99 S.E.2d 251 (1957); Milam v. Miss Ga. Dairies, Inc., 118 Ga. App. 791, 165 S.E.2d 463 (1968); Webb v. Standard Oil Co., 414 F.2d 320 (5th Cir. 1969); Taylor v. Bolton, 121 Ga. App. 141, 173 S.E.2d 96 (1970); Dodd v. Clary, 135 Ga. App. 296, 217 S.E.2d 397 (1975); Barnes v. Allen Kane's Major Dodge, Inc., 148 Ga. App. 332, 250 S.E.2d 876 (1978); Butler v. Shirah, 154 Ga. App. 111, 267 S.E.2d 647 (1980); Ray v. Edwards, 557 F. Supp. 664 (N.D. Ga. 1982); Cherry v. Kelly Servs., Inc., 171 Ga. App. 235, 319 S.E.2d 463 (1984); Patterson v. Southeastern Newspapers, Inc., 243 Ga. App. 241, 533 S.E.2d 119 (2000); McCrary v. Middle Ga. Mgmt. Servs., 315 Ga. App. 247, 726 S.E.2d 740 (2012); Barzey v. City of Cuthbert, 295 Ga. 641, 763 S.E.2d 447 (2014).

Competency of employees.

- The word "competent" should be given a comprehensive interpretation and include within its range of meaning all that "is essential to make up a reasonably safe person, considering the nature of the work, and the general safety of those who are required to associate with such person in the common general employment." Swift Mfg. Co. v. Phillips, 8 Ga. App. 425, 69 S.E. 585 (1910).

Selection of incompetent servants is an act of negligence as will authorize a cause of action in favor of any person who is injured as the direct and proximate result thereof. Elrod v. Ogles, 78 Ga. App. 396, 50 S.E.2d 791 (1948); Parry v. Davison-Paxon Co., 87 Ga. App. 51, 73 S.E.2d 59 (1952). For comment, see 4 Mercer L. Rev. 368 (1953).

Employer's degree of care.

- Master is not required to anticipate that a servant may be negligent, and to warn the servant of dangers which may arise from the possible negligence of others. Crown Cotton Mills v. McNally, 123 Ga. 35, 51 S.E. 13 (1905).

As the liability of the master depends on the exercise of ordinary care it is necessary to determine a standard, and the well established rule is that the master must exercise such care as every prudent person would exercise under the circumstances. This criterion, as to what would be done under the circumstances, varies according to the time, place, and conditions. Otis Elevator Co. v. Rogers, 159 Ga. 53, 125 S.E. 60 (1924).

Means a master could have been reasonably expected to take in order to prevent the driver of the master's automobile from causing a collision by improperly driving the automobile in the master's absence was the use of ordinary care in selecting the driver. Roberts v. Ethridge, 73 Ga. App. 400, 36 S.E.2d 883 (1946).

Inasmuch as negligence was the basis of the master's liability for injuries to the master's employees, recovery may be had only when the master failed to exercise ordinary care in the selection and retention of servants and this rule was further qualified and restricted by this section. Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).

Duty of a master to select and retain only competent servants is not absolute, but is to be measured by knowledge, actual or constructive, of the probable results of the master's conduct. Likewise, when a servant has knowledge, or has an equal opportunity with the master to acquire knowledge, of the incompetency of servant's fellow servant there can be no recovery; in such a case the servant will be said to have "waived" the negligence of the master. Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).

Nothing in the record showed that the hospital failed to exercise ordinary care in the hiring process or in its retention of the alleged sexual molester; therefore, summary judgment was properly granted in favor of the hospital. Bunn-Penn v. Southern Regional Medical Corp., 227 Ga. App. 291, 488 S.E.2d 747 (1997).

Trial court properly granted summary judgment to the health center on the patient's claim that it was responsible for the negligent hiring/retention of the mental health assistant who allegedly raped the patient, as the health center showed that it exercised ordinary care not to hire a person who posed a reasonably foreseeable risk of inflicting harm on others by hiring a professional investigation service to do a background check on the mental health assistant; as a result of that background check, the service advised the health center that the mental health assistant had not been involved in criminal activity and the patient did not show that the health center otherwise knew that the mental health assistant posed a risk of harm to its patients. Munroe v. Universal Health Servs., Inc., 277 Ga. 861, 596 S.E.2d 604 (2004).

Because the screening protocols used by the defendant hospital and the hospital's officials in hiring a substance abuse counselor sufficiently satisfied the standard of care for hiring under O.C.G.A. § 34-7-20 in that an outside firms' criminal background check revealed no criminal activity, a drug screen showed no evidence of drug use, and no negative information was received upon attempts to contact prior employers, a claim of negligent hiring by the plaintiff patients, who alleged the counselor sexually harassed the plaintiffs, failed. Doe v. Fulton-DeKalb Hosp. Auth., 628 F.3d 1325 (11th Cir. 2010).

Jury question was presented as to a driver's claim for negligent hiring of a police officer because the city could have learned of a previous similar incident of drunkenness and belligerence if the city had contacted the officer's supervisor at the officer's prior employment as required by city operating procedures. Graham v. City of Duluth, 328 Ga. App. 496, 759 S.E.2d 645 (2014).

Leaving servant in dangerous emergency.

- There is a plain breach of the master's nondelegable duty when the master leaves the servant in a dangerous emergency through the lack of an adequacy of helpers. Sparta Oil Mill v. Russell, 6 Ga. App. 293, 65 S.E. 37 (1909).

Inadequacy of fellow servant and misrepresentation by master.

- See Beard v. Georgia Mfg. Co., 8 Ga. App. 618, 70 S.E. 57 (1911).

Psychological testing of employees.

- When an employee has absolutely no background of prior criminal or dangerous propensities and, during the employee's employment for a substantial number of years, the employee has had a good work record without a single complaint from customers, the employer may not be found negligent in hiring and retaining such an employee because of a failure to require such an employee to submit to psychological testing or interviews. Southern Bell Tel. & Tel. Co. v. Sharara, 167 Ga. App. 665, 307 S.E.2d 129 (1983).

Presumption that master's duty is discharged.

- It is always presumed that the master has discharged the master's duties to the servant, and this includes the duty to provide a sufficient force of competent workmen as well as all the other personal duties of the master. Baxley v. Satilla Mfg. Co., 114 Ga. 720, 40 S.E. 730 (1902).

When liability arises.

- Liability of a master arises because of the omission of the duty to provide competent fellow servants, and not because the negligence of the latter is, in law, imputable to the master. Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194, 33 S.E. 961 (1899); 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); Strickland v. Foughner, 63 Ga. App. 805, 12 S.E.2d 371 (1940).

Proof of employer's negligence.

- Injured servant must 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. Camilla Cotton Oil & Fertilizer Co. v. Walker, 21 Ga. App. 603, 94 S.E. 855 (1918); Strickland v. Foughner, 63 Ga. App. 805, 12 S.E.2d 371 (1940).

Before recovery can be had against a master for negligently employing an incompetent fellow servant it must appear that the master knew, or by the exercise of due diligence should have known, of the incompetency at the time of the employment; or else that the master negligently retained such fellow servant after the master was fairly chargeable with knowledge of such incompetency. Strickland v. Foughner, 63 Ga. App. 805, 12 S.E.2d 371 (1940).

Summary judgment was granted to the defendant employer on the plaintiff employee's claim for negligent retention under O.C.G.A. § 34-7-20 because the plaintiff did not present evidence to create a genuine issue of material fact as to whether the defendant negligently retained the defendant's manager. Ekokotu v. Fed. Express Corp., F.3d (11th Cir. Jan. 19, 2011), cert. denied, 132 S. Ct. 420, 181 L. Ed. 2d 260 (U.S. 2011)(Unpublished).

Trial court properly directed a verdict in favor of a hotel in a guest's suit against the hotel for negligent hiring and retention of a massage therapist, who allegedly sexually assaulted the guest, because the guest did not introduce evidence to show that the hotel knew or reasonably should have known that the massage therapist had a tendency to engage in behavior relevant to the guest's injuries. Tomsic v. Marriott Int'l, Inc., 321 Ga. App. 374, 739 S.E.2d 521 (2013).

Employer's knowledge of discrimination.

- School district was not liable under O.C.G.A. § 34-7-20 because there was no evidence to show that the district knew or should have known about the discriminatory tendencies of a superintendent as the employee did not inform the school board of the alleged discrimination until three days before the employee was terminated, nor was there evidence of complaints by other individuals. Palmer v. Stewart County Sch. Dist., F. Supp. 2d (M.D. Ga. June 17, 2005).

Sexual harassment.

- Court affirmed a district court's grant of summary judgment to an employer and a supervisor on two employees' O.C.G.A. § 34-7-20 claims of negligent hiring and retention of the supervisor, who allegedly sexually harassed the two employees; the employer was not put on notice of the supervisor's alleged propensity for sexual harassment by previous complaints that the supervisor stared at people and touched a co-worker's thigh, as such behavior was not considered to be sexual harassment, nor was there any evidence that these incidents were sexual in nature. Herron v. Morton, F.3d (11th Cir. Sept. 28, 2005)(Unpublished).

Servant's degree of care.

- Servant cannot recover if by the exercise of ordinary care the servant could have known of the incompetency. Strickland v. Foughner, 63 Ga. App. 805, 12 S.E.2d 371 (1940).

Speeding as indicating competency of employee.

- Trial court erred in granting an employer's motion for summary judgment in a widow's action to recover for the damages a driver sustained when the driver's car crashed into a tractor-trailer an employee had parked on the side of the road because a jury had to resolve the issues of whether the employee's moving violations, speeding, indicated that the employee would be an incompetent driver and whether the employer failed to exercise reasonable care in hiring and retaining the employee. Coe v. Carroll & Carroll, Inc., 308 Ga. App. 777, 709 S.E.2d 324 (2011).

Impact of failure of federal discrimination suit.

- After an employee's federal national origin discrimination and retaliation claims failed, the employee's derivative state law claim of negligent retention and supervision failed because the contested conduct did not amount to a substantive violation of the federal statute. Ekokotu v. Fed. Express Corp., F.3d (11th Cir. July 15, 2013)(Unpublished).

Jury charge distinguishing negligence and incompetency.

- In a case so requiring, the distinction between the negligence of a competent servant and the unskillfulness of an incompetent servant should be clearly pointed out to the jury. Ingram v. Hilton & Dodge Lumber Co., 108 Ga. 194, 33 S.E. 961 (1899).

Applicability of Workers' Compensation Act.

- When an employer and employee are under the provisions of the Workers' Compensation Act, a claim by the employee that the employer failed to furnish the employee with a safe place to work, even if wilfully done, is encompassed within the Act. Garrett v. K-Mart Corp., 197 Ga. App. 374, 398 S.E.2d 302 (1990).

Master's duty to insure safety.

- Among the nonassignable duties of the master is that of providing the servant a reasonably safe place to work. Chenall v. Palmer Brick Co., 117 Ga. 106, 43 S.E. 443 (1903); Colley v. Southern Cotton Oil Co., 120 Ga. 258, 47 S.E. 932 (1904); Turner v. Seville Gin & Whse. Co., 127 Ga. 555, 56 S.E. 739 (1907); Eagle & Phenix Mills v. Johnson, 131 Ga. 44, 61 S.E. 990 (1908); International Cotton Mills v. Webb, 22 Ga. App. 309, 96 S.E. 16 (1918).

Master is bound to make reasonable provision for the protection of the servant against dangers to which the servant is exposed while engaged in the work the servant is employed to perform. Chenall v. Palmer Brick Co., 117 Ga. 106, 43 S.E. 443 (1903); Jackson v. Merchants & Miners Transp. Co., 118 Ga. 651, 45 S.E. 254 (1903); Colley v. Southern Cotton Oil Co., 120 Ga. 258, 47 S.E. 932 (1904).

Duty of the master to furnish a safe place for the servant to work is not absolute and unqualified. Some kinds of work are necessarily attended with dangers against which the master cannot by any degree of diligence provide. In such case the law does not require of the master impossibilities; but if, by exercising ordinary care, the master can make safe the place wherein the servant is to labor, it is the master's duty to do so. Merchants & Miners Transp. Co. v. Jackson, 120 Ga. 211, 47 S.E. 522 (1904); Otis Elevator Co. v. Rogers, 159 Ga. 53, 125 S.E. 60 (1924).

It is a master's duty to exercise ordinary and reasonable care to furnish a safe place to work. Whitehurst v. Standard Oil Co., 8 F.2d 728 (5th Cir. 1925); Holman v. American Auto. Ins. Co., 201 Ga. 454, 39 S.E.2d 850 (1946); Owensby v. Jones, 109 Ga. App. 398, 136 S.E.2d 451 (1964).

Master is under an absolute duty to a servant to furnish the servant a safe working place and to warn of unusual or newly developed dangers which arise in the course of the employment and which are likely to escape an ordinarily prudent servant's knowledge under the circumstances. The servant may, without creating an imputation of personal negligence, rely upon the master's performance of these duties until such time as the servant shall discover, or in the exercise of ordinary diligence should discover, that there has been a failure in this respect upon the master's part. Simowitz v. Register, 60 Ga. App. 180, 3 S.E.2d 231 (1939).

Employer is not the insurer of an employees' safety and is bound only to the exercise of reasonable care in this connection. Carter v. Callaway, 87 Ga. App. 754, 75 S.E.2d 187 (1953).

Master's specific duty of care.

- Master's specific duty to furnish a safe place to work relates to the equipment of houses, plants and other similar structures, though, of course, it is a general duty of the master, as to all times and all places, not to expose the servant to an extraordinary hazard, of which the master has knowledge, actual or constructive, and of which the servant is ignorant, and could not by ordinary diligence acquire knowledge. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206, 45 S.E.2d 280 (1947).

Latent defects.

- Under this section "if there are latent defects in the construction of the place of work which are, or in the exercise of ordinary care could be, known to the master, and which are unknown to the servant, it is the duty of the master to warn the servant thereof." Crown Cotton Mills v. McNally, 123 Ga. 35, 51 S.E. 13 (1905); Southern Cotton Oil Co. v. Horton, 22 Ga. App. 155, 95 S.E. 765 (1918).

Master's duty of inspection.

- When the presence of the defect in the premises is latent, the master is held to a higher standard of conduct than the servant, since the master owes to the servant the duty of inspection; if its presence is hidden, the master would be bound to discover the fact sooner than the servant, because the duty of inspection rests upon the master and not upon the servant. Nashville, C. & St. L. Ry. v. Hilderbrand, 48 Ga. App. 140, 172 S.E. 87 (1933).

Places to which duty applies.

- Duty of the master to furnish a safe place to work is usually applied to a permanent place, or one which is quasi-permanent. It does not apply to such places as are constantly shifting and being transformed as a direct result of the servant's labor, and when the work in its progress necessarily changes the character for safety of the place in which it is performed as it progresses. Upchurch v. Culpepper, 17 Ga. App. 577, 87 S.E. 834 (1916).

The general rule in regard to the duty of the master to furnish a safe place to work is not rendered inapplicable merely because the servant was engaged in construction work, and that at the time of the injury the object being constructed was in an unfinished state, to some extent changing from day to day. If it were otherwise, it would be difficult to find a case in which a servant was engaged in performing labor for a master and the rule would apply. Practically all labor normally tends to change the condition of the thing labored upon; otherwise it would be useless. Terry Shipbuilding Corp. v. Griffian, 153 Ga. 390, 112 S.E. 374 (1922); Tufts v. Threlkeld, 31 Ga. App. 452, 121 S.E. 120 (1923).

Church members.

- Summary judgment was not proper when a question of fact remained regarding member's competence to undertake a project and the evidence presented a question of fact as to whether a church negligently created a hazard on the property which precipitated a member's injuries. Piney Grove Baptist Church v. Goss, 255 Ga. App. 380, 565 S.E.2d 569 (2002).

Buildings.

- Master is not obligated to keep a building, which the master's servants are employed in erecting, in a safe condition at every moment of their work, so far as its safety depends on the due performance of that work by them and their fellow servants. Byrd v. Thompson, 146 Ga. 300, 91 S.E. 100 (1916).

City sewers.

- City acting under authority of its charter in the repairing or construction of sewers is bound to the same rule of diligence as to providing a reasonably safe place for its employees to work that applies in the case of a private contractor. City of Atlanta v. Trussell, 21 Ga. App. 340, 94 S.E. 649 (1917).

Platforms and scaffolds.

- Master is not, under the master's general duty of respecting the servant's safety, held to the same quantum of care in the erection of platforms and scaffolds intended only for temporary use as the master is in the building and maintenance of more permanent structures. Riverside Mills v. Brooks, 6 Ga. App. 67, 64 S.E. 282 (1909); Dunn & Bro. v. Morris, 132 Ga. 440, 64 S.E. 321 (1909).

Servant's reliance upon performance of duty.

- Pursuant to the provisions of this section, a servant can rely upon the performance of the duty of furnishing a safe place in which to work. Danger arising from an unsafe place is not included within the risks assumed by the servant. International Cotton Mills v. Carroll, 22 Ga. App. 26, 95 S.E. 472 (1918); Southern Cotton Oil Co. v. Horton, 22 Ga. App. 155, 95 S.E. 765 (1918); Tufts v. Threlkeld, 31 Ga. App. 452, 121 S.E. 120 (1923).

Servant has the right to assume that the servant's master has performed the duty of furnishing the servant with a safe place to work, and is under no obligation to inspect the same in order to discover latent defects not open to ordinary observation; a danger arising from an unsafe place is not included among the risks assumed by the servant and the duty of inspection rests upon the master and not upon the servant. Nashville, C. & St. L. Ry. v. Hilderbrand, 48 Ga. App. 140, 172 S.E. 87 (1933); Dessau v. Achord, 50 Ga. App. 426, 178 S.E. 396 (1935).

Servant can rely upon the performance of the duty of furnishing a safe place in which to work; danger arising from an unsafe place is not included within the risks assumed by the servant. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620, 11 S.E.2d 682 (1940).

Duty of servant.

- A servant is bound to observe open and obvious dangers such as would be disclosed by the exercise of ordinary care. Nashville, C. & St. L. Ry. v. Hilderbrand, 48 Ga. App. 140, 172 S.E. 87 (1933).

A servant or an employee is not required to make a special inspection of the condition of the working place furnished to the servant, but if, by exercising ordinary care, the servant can discover the condition of it, it is the servant's duty to do so. Spivey v. Lovett & Brinson, 48 Ga. App. 335, 172 S.E. 658 (1934).

Servant must exercise like care in discovering defects therein. Carter v. Callaway, 87 Ga. App. 754, 75 S.E.2d 187 (1953).

Evidence.

- When no facts were alleged to show that the defendant had knowledge that the dog on the premises was vicious, or that it would be unsafe for the employee to work in the house with the dog present, the employee failed to set out a cause of action because of the failure to allege facts showing the defendant knew, or should have known of the danger. Hays v. Anchors, 71 Ga. App. 280, 30 S.E.2d 646 (1944).

Jury charge.

- Charge to the jury which omits to qualify the word "safe" by "reasonably" is inaccurate, but will not constitute reversible error if the evidence is clear and convincing. Eagle & Phenix Mills v. Moncrief, 17 Ga. App. 10, 86 S.E. 260 (1915).

Care of master in general.

- Master is not an insurer with reference to character of machinery. Merchants & Miners Transp. Co. v. Jackson, 120 Ga. 211, 47 S.E. 522 (1904).

It is not incumbent upon the master to procure the best and safest machinery which can be made. It is sufficient if the machinery is of a kind in general use, and reasonably safe for all persons who operate it with ordinary care and diligence. Vinson v. Willingham Cotton Mills, 2 Ga. App. 53, 58 S.E. 413 (1907); Belk v. Lee Roy Myers Co., 17 Ga. App. 684, 87 S.E. 1089 (1916).

Master is bound to exercise ordinary care in furnishing machinery and appliances equal to those in general use, and reasonably safe for all persons who operate them with ordinary care and diligence in furtherance of the purposes for which such instrumentalities are intended and if the proximate cause of an injury consists in the failure of the master to perform the duty thus actually devolving upon the master, the master is liable to the injured servant, provided the servant, by the exercise of ordinary care, could not have prevented the injury personally. Walters v. Berry Schools, 40 Ga. App. 751, 151 S.E. 544 (1930).

While an employer is required to exercise ordinary care to furnish a safe place to work, the employer is not required to furnish the newest, safest, or best tools or methods of operation, or adopt extraordinary or unusual safeguards against risks and dangers. Hollingsworth v. Thomas, 148 Ga. App. 38, 250 S.E.2d 791 (1978).

Purposes for which machinery obtained.

- Ordinary diligence requires a master to furnish to the master's servant appliances reasonably suited for the uses intended, but the law does not exact of the master the extraordinary diligence which would be demanded if it were required that instrumentalities intended for one use should be safe and suitable for every unintended use to which they might be casually or unexpectedly applied. Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030, 48 S.E. 438 (1904).

Appliances used for other than intended purpose.

- If the master requires a servant to use or knows that the servant will necessarily use, an appliance originally intended for another purpose, the servant will thereby be held responsible, as if the instrumentality had originally been intended for such new use. Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030, 48 S.E. 438 (1904).

Defective tools.

- This section was now applicable in cases of injuries arising from defective tools. Williams v. Garbutt Lumber Co., 132 Ga. 221, 64 S.E. 65 (1909).

It is actionable negligence for a master to order a servant to work with an unsafe instrumentality, and an assurance of safety, coupled with the order, not only aggravates the master's negligence, but also relieves the servant from the assumption of the risk; the assurance of safety likewise makes the question of the servant's contributory negligence one for solution by the jury, unless the danger is so obvious that to undertake to encounter it amounts to plain rashness. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).

Given that an employee of a subcontractor who was injured in a fall from a ladder supplied by the contractor provided no evidence showing that the ladder was defective or that the contractor had actual or constructive knowledge of any such defect, the trial court erred in denying the contractor's motion for summary judgment. Lakeshore Contracting, LLC v. Lopez-Hernandez, 351 Ga. App. 232, 830 S.E.2d 561 (2019).

Negligent inspection or maintenance of appliances.

- Among the absolute duties of the master is that of making inspections for the discovery of defects and dangers in those instrumentalities within the range of which the servant is likely to come in the discharge of the servant's duties; hence, by law, the master ought to know of such defects as a reasonable inspection would disclose. Moore v. Dublin Cotton Mills, 127 Ga. 609, 56 S.E. 839, 10 L.R.A. (n.s.) 772 (1907); Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308, 58 S.E. 524 (1907), later appeal, 6 Ga. App. 153, 64 S.E. 494 (1909); Southern Bell Tel. & Tel. Co. v. Shamos, 12 Ga. App. 463, 77 S.E. 312 (1913); Spencer v. Lauer & Harper Co., 14 Ga. App. 35, 81 S.E. 387 (1913).

If the appliance actually furnished, even though not legally required, is or becomes dangerous for use by the servant, and by its own positive act, as distinguished from a harmless failure to act or function, injures the servant, the master will become liable for negligent inspection or maintenance, under recognized principles of the common law applicable in such cases. Southern Ry. v. Goree, 54 Ga. App. 134, 187 S.E. 297 (1936), later appeal, 57 Ga. App. 63, 194 S.E. 609 (1937).

A master owes a servant the duty of inspection. Rogers v. Bragg, 117 Ga. App. 295, 160 S.E.2d 217 (1968).

Employee's knowledge of defect.

- In a farm employee's action for negligence against an employer, there was no basis for a recovery under O.C.G.A. § 34-7-20, when the evidence was uncontroverted that the employee had equal knowledge with the employer of a defect in the "power takeoff" of the tractor, the employee's claim was barred by the plain language of O.C.G.A. § 34-7-23 and the trial court erred in giving a separate instruction on the liability for furnishing defective machinery which was not adjusted to the evidence. Strickland v. Howard, 214 Ga. App. 307, 447 S.E.2d 637 (1994).

Inspection for latent defects.

- When defects in machinery or appliances are such as to deceive human judgment, the master as well as the servant stands excused for a failure to discover them. Baxley v. Satilla Mfg. Co., 114 Ga. 720, 40 S.E. 730 (1902); Holland v. McRae Oil & Fertilizer Co., 134 Ga. 678, 68 S.E. 555 (1910).

Master who, after purchasing a permanent structure or plant for a particular business, puts a servant to work therein or thereon, is not liable to such servant for injuries sustained by reason of a latent defect therein, if the master has exercised ordinary and reasonable care to detect the latent defect and has failed to discover it. Atlantic & Birmingham R.R. v. Reynolds, 117 Ga. 47, 43 S.E. 456 (1903).

Master would be negligent, under this section, not to warn the servant of a latent defect, if the master knew, or by the exercise of ordinary care, could have known of its existence. Lawrenceville Oil Mill v. Walton, 143 Ga. 259, 84 S.E. 584 (1915).

In the case of the latent defects which are discoverable by proper inspection, the master is necessarily held to a higher standard of conduct than the servant, since the master owes to the servant the duty of inspection. Owensby v. Jones, 109 Ga. App. 398, 136 S.E.2d 451 (1964).

Principle regarding latent defects is applicable also in the relationship of employer to independent contractor. Seagraves v. Abco Mfg. Co., 118 Ga. App. 414, 164 S.E.2d 242 (1968), later appeal, 121 Ga. App. 224, 173 S.E.2d 416 (1970).

In a case of latent defects (those which are only discoverable by proper inspection) the master is necessarily held to a higher standard of conduct than the servant, since the master owes to the servant the duty of inspection. Harris v. Strickland, 204 Ga. App. 889, 421 S.E.2d 91 (1992).

Trial court erred in giving the charge on the "equal means" of the plaintiff's child of knowing of the alleged defect in the tractor seat when there was no evidence that the plaintiff's child had actual knowledge of the allegedly defective tractor seat. There was no evidence that inspecting the tractor was part of the assigned duties of the plaintiff's child. Harris v. Strickland, 204 Ga. App. 889, 421 S.E.2d 91 (1992).

Loose bolt as latent defect.

- Looseness of the bolt attaching a seat to a mower frame which allowed it to slip out and thus permitted the seat to fall off was a latent defect. Chastain v. Fuqua Indus., Inc., 156 Ga. App. 719, 275 S.E.2d 679 (1980).

Latent defect not in machinery itself.

- When the evidence does not show a latent defect in the machinery itself, but the evidence was sufficient to support appellees' theory that there was a latent defect in the manner in which the machinery was installed, or in the appellants' failure to install a warning device on the machinery, the trial court did not err in giving a jury charge under this section. McClurd v. Reddick, 135 Ga. App. 136, 217 S.E.2d 163 (1975).

Newly developed dangers.

- Master is under an absolute duty to the servant to warn the servant of any unusual or newly developed changes which arise in the course of the employment and which are likely to escape an ordinary prudent servant's knowledge under the circumstances. Southern Cotton-Oil Co. v. Gladman, 1 Ga. App. 259, 58 S.E. 249 (1907).

Machinery to be repaired.

- When a master employed a servant not to work with machinery, but to repair it when defective or out of order, the provisions of this section did not apply to the machinery to be repaired. Green v. Babcock Bros. Lumber Co., 130 Ga. 469, 60 S.E. 1062 (1908).

Liability of master due to third person.

- If the master uses the instrumentality in the master's business, and so deals with it as to practically adopt it as the master's own, the master becomes, relative to a servant injured, the owner, and is under the same duty to the servant as an owner would be. Central of Ga. Ry. v. McClifford, 120 Ga. 90, 47 S.E. 590 (1904); Southern Bell Tel. & Tel. Co. v. Covington, 139 Ga. 566, 77 S.E. 382 (1913).

Inspection by servant.

- Servant is under no obligation to inspect appliances to discover concealed dangers which would not be disclosed by superficial observation. Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308, 58 S.E. 524 (1907), later appeal, 6 Ga. App. 153, 64 S.E. 494 (1909); Decatur Lumber Co. v. Fulton, 26 Ga. App. 499, 106 S.E. 609 (1921); Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).

Not only is it true that the duty of inspecting for defects which would not be disclosed by superficial observation is not primarily imposed upon a servant who is employed merely to operate a machine or to see that it is operated, except when the injured employee is an inspector, the master's means of knowledge of latent defects in the machinery furnished are primarily to be considered as greater than those of the servant. Decatur Lumber Co. v. Fulton, 26 Ga. App. 499, 106 S.E. 609 (1921).

Instruction of servants.

- Purpose of instruction by the master to inexperienced servants is to inform them of the danger. Crown Cotton Mills v. McNally, 123 Ga. 35, 51 S.E. 13 (1905).

Instruction of servants is the nonassignable duty of the master. Moore v. Dublin Cotton Mills, 127 Ga. 609, 56 S.E. 839, 10 L.R.A. (n.s.) 772 (1907).

Master is bound to instruct inexperienced servants, without reference to their age, in the operation of machinery and appliances with which they are not acquainted. Moore v. Dublin Cotton Mills, 127 Ga. 609, 56 S.E. 839, 10 L.R.A. (n.s.) 772 (1907).

Servant's standard of care.

- If a danger is obvious and as easily known to the servant as to the master, the latter will not be liable for a failure to warn. Crown Cotton Mills v. McNally, 123 Ga. 35, 51 S.E. 13 (1905); Hendrix v. Vale Royal Mfg. Co., 134 Ga. 712, 68 S.E. 483 (1910); Tufts v. Threlkeld, 31 Ga. App. 452, 121 S.E. 120 (1923).

When a peril is obvious or so patent as to be readily understood by the employee by the reasonable use of the employee's senses, having in view the employee's age, intelligence, and experience, the employee will not be heard to say that the employee did not realize or appreciate it. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).

If the danger from the continued use of a defective tool or instrument is so obvious or apparent that an ordinarily prudent person would not continue to use the instrument, a servant, although the servant may have received assurances of safety from the master, may not continue its use and hold the master liable for ensuing injury, as the use by the servant of an obviously dangerous instrument amounts to the failure to use ordinary care to avoid the consequences of the master's negligence. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).

Compliance with master's specific command.

- Servant is bound to obey a master's order unless the command includes a violation of the law, or the act required is so obviously dangerous that no person of ordinary prudence would undertake to perform it and when the master personally gives the order and the servant obeys it, and is injured as a consequence thereof, of course, the master is liable. Padgett v. Southern Ry., 48 Ga. App. 214, 172 S.E. 597 (1934).

Whether or not a master is negligent in ordering a servant to work under dangerous and hazardous conditions may depend upon the capacity of the servant, due to the servant's age or otherwise, known to the master, to appreciate the danger of the conditions of the employment. Jordan v. Batayias, 53 Ga. App. 538, 186 S.E. 451 (1936).

If an order was negligent and the servant knew of the peril of complying with it, or if the servant had equal means with the master of knowing of the peril, or by the exercise of ordinary care might have known thereof, then the servant could not recover for an injury received in complying with the order. Abercrombie v. Ivey, 59 Ga. App. 296, 200 S.E. 551 (1938).

In an action for injuries to a servant resulting from the servant's compliance with a direct and specific command of the master given with reference to an instrumentality by which the master's work is to be performed, the danger or risk incurred by the servant is not assumed by virtue of the employment, unless it involves a violation of law or the act required is so obviously dangerous that no person of ordinary prudence would undertake to perform it. Louisville & N.R.R. v. Crapps, 62 Ga. App. 437, 8 S.E.2d 413 (1940).

If a servant points out a danger and the master orders the servant to pursue a dangerous activity anyway, the master is liable for any injury which results. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).

Master's assurance of safety.

- When the master says, "it is safe," the law will construe these words as such a warranty that a breach of it will release the servant from the assumption of the risk. Dessau v. Achord, 50 Ga. App. 426, 178 S.E. 396 (1935).

Employee, in using a defective appliance furnished the servant by the master, does not necessarily assume the risk when the servant is assured by the master that the appliance is in a safe and proper condition for use. Louisville & N.R.R. v. Crapps, 62 Ga. App. 437, 8 S.E.2d 413 (1940).

When the master commanded the servant to proceed with work which the master knew was dangerous with the assurance to the servant that it was not dangerous, such act on the part of the master relieved the servant of the implied agreement of assumption of risk as to the particular activity warranted as safe, and the master cannot set up as a defense the assumption of risk set forth in former Code 1933, § 66-303 (see now O.C.G.A. § 34-7-23). Swails v. Carpenter, 112 Ga. App. 117, 144 S.E.2d 182 (1965).

Servant cannot reasonably rely on a master's "assurances" that a hazardous condition will be corrected, and a servant must bear the loss from any injury resulting from obvious dangers, despite the fact that the servant's actions were sanctioned by the master. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).

Assumption of risk.

- When a servant for 20 years voluntarily undertook the duty of climbing a ladder which the servant described as a very dangerous activity and knew to be risky, the employer is not liable despite the employer's assurances to the servant that the ladder's dangerous condition would be repaired, since the servant assumed the risk. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).

Suspension of assumption of risk.

- Fault or "assumption of risk" implied from a servant's knowledge that a tool, instrument, appliance, piece of machinery, or place of work is defective or dangerous is suspended by the master's promise to repair, made in response to the servant's complaint, so that if the servant is induced by such promise to continue at work, the servant may recover for any injury which the servant sustains by reason of such defect within a reasonable time after the making of the promise. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).

Abrogation of assumption of risk.

- While ordinarily the law reads into contracts of employment an agreement on the servant's part to assume the known risks of the employment so far as the servant has the capacity to realize and comprehend them, this implication may be abrogated by an express or implied agreement to the contrary; if the servant complains to the master that the instrumentality appears to be dangerous, and thereupon the master commands the servant to proceed with the work and assures the servant there is no danger, the law implies a quasi-new agreement whereby the master relieves the servant of the servant's former assumption of the risk and places responsibility for the ensuing injury upon the master. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).

When a servant complained to the master that the instrumentality supplied by the master for the servant to accomplish the servant's assigned task appeared to be dangerous, and thereupon the master commanded the servant to proceed with the work, and assured the servant there was no danger, then, unless the danger was so obvious and manifest that no prudent person would expose himself thereto, the law implied a quasi-new agreement whereby the master relieves the servant from the servant's former assumption of risk under former Code 1933, § 66-303 (see now O.C.G.A. § 34-7-23) and placed responsibility for resulting injuries upon the master. Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).

Employee's appreciation of danger bars action.

- If a servant's knowledge of danger is equal to that of the master, a nonsuit is proper. Central of Ga. Ry. v. Henderson, 6 Ga. App. 459, 65 S.E. 297 (1909).

Although an employee may have had knowledge, as of a physical fact, of the defective condition of a tool, appliance or place, by reason of which the employee has sustained an injury, it by no means follows that the employee must have appreciated the danger to which the employee was exposed thereby; if this is shown to have been the case, the employee's right of recovery is not defeated, for it is an appreciation of the danger, not mere knowledge of the defect by which the danger is threatened, that bars the employee's action. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936); Simowitz v. Register, 60 Ga. App. 180, 3 S.E.2d 231 (1939).

It is the employee's appreciation of the danger, not mere knowledge of the defect by which the danger is threatened, that bars the employee's action. When, however, a peril is obvious or so patent as to be readily understood by the employee by the reasonable use of the employee's senses, having in view the employee's age, intelligence, and experience, the employee will not be heard to say that the employee did not realize or appreciate it. Simowitz v. Register, 60 Ga. App. 180, 3 S.E.2d 231 (1939).

Pleadings.

- Deficiency may be sufficiently alleged by stating that the particular contrivance was so constructed or maintained that it gave forth a result which it was designed to prevent, and which such contrivances, as they are usually constructed and maintained, do prevent. Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).

Defect may be described by showing that a machine was in a condition that produced certain definitely described results, which a machine not defective would not and should not produce. It is not necessary to describe minutely or particularly the physical appearance of the parts alleged to be defective. Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).

Motion to dismiss.

- When in a suit for personal injuries it is manifest from the allegations of the plaintiff's petition that the plaintiff had at least equal opportunities with the master (the defendant) of discovering the defective condition of an appliance from which the injuries complained of resulted, a general demurrer (now motion to dismiss) to the petition was properly sustained. Lee v. Atlantic C.L.R.R., 125 Ga. 655, 54 S.E. 678 (1906).

Jury question as to master's liability.

- It was for the jury to determine whether, under the alleged misrepresentations and commands of the alter ego of the master, given to the servant with reference to the manner and instrumentality by which the master's work was to be done, and under the master's assurance of safety given to the servant, the injury sustained by the servant resulted from the alleged negligent misrepresentations and commands by the master; and, if so, whether the servant, in acting upon the misrepresentations and obeying the commands, was exercising ordinary care for the servant's own protection. Padgett v. Southern Ry., 48 Ga. App. 214, 172 S.E. 597 (1934).

Employee's knowledge.

- Employee is not presumed to have knowledge of the hidden dangers requiring scientific knowledge to fully appreciate, or to assume risk thereof; unless the employee is warned or undertakes the work with such knowledge, the employee is not as a matter of law chargeable therewith. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620, 11 S.E.2d 682 (1940).

Master's duty to warn.

- Master is conclusively presumed to have knowledge of the nature of the constituents and general characteristics of the substances and things used in the master's business, which frequently makes the knowledge implied against the master superior to that implied against the servant as to things used in connection with the master's business. Having such knowledge, the master is under a duty to warn the servant of the dangers involved. Genesco, Inc. v. Greeson, 105 Ga. App. 798, 125 S.E.2d 786 (1962).

When there are dangers incident to the employment, unknown to the servant, of which the master knows or ought to know, the master is under a duty to give warning thereof. Rogers v. Bragg, 117 Ga. App. 295, 160 S.E.2d 217 (1968).

Duty to warn of disease.

- Master must warn a servant of the conditions under which the servant is employed which are liable to engender disease, and must furnish suitable protection from such danger, provided that the master is in a position to have greater knowledge of the danger than the servant. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620, 11 S.E.2d 682 (1940).

Employer's liability for disease.

- Although the defendant hospital was not an insurer of the safety of its employees, it had the duty to use reasonable care to protect them against the dangers of employment which might reasonably be expected to produce disease, and would be liable to the plaintiff employee for a disease contracted in the course of employment, when the disease was brought about by the negligence of the employer. Thigpen v. Executive Comm. of Baptist Convention, 114 Ga. App. 839, 152 S.E.2d 920 (1966); Miss Ga. Dairies, Inc. v. McLarty, 114 Ga. App. 259, 150 S.E.2d 725 (1966).

Assumption of skill.

- Under the "assumption of skill" doctrine, whereunder the master's technical or scientific knowledge of the master's business makes the knowledge implied to the master superior to that implied against the servant as to matters in connection with the business, the master is under a duty to warn the servant of the dangers involved. Thigpen v. Executive Comm. of Baptist Convention, 114 Ga. App. 839, 152 S.E.2d 920 (1966).

Employer's liability for servant's tort.

- In determining the liability of a master for the negligent or willful acts of a servant, the test of liability is not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master's business for accomplishing the ends of the servant's employment. Gomez v. Great Atl. & Pac. Tea Co., 48 Ga. App. 398, 172 S.E. 750 (1934).

When a servant departs from the prosecution of the servant's business and commits a tort while acting without the scope of the servant's authority, the person employing the servant may still be liable if the person failed to exercise due care in the selection of the servant. Pope v. Seaboard Air Line R.R., 88 Ga. App. 557, 77 S.E.2d 55 (1953).

Servant's independent voluntary act.

- If a servant steps aside from the master's business, for however short a time, to do an act outside the scope of and not in furtherance of the work of the servant's employment, and injury results to another from such independent voluntary act, the servant may be liable, but the master is not. Gomez v. Great Atl. & Pac. Tea Co., 48 Ga. App. 398, 172 S.E. 750 (1934).

When a servant, while engaged in the line of the servant's duties for the servant's master, commits an assault and battery upon another because of a personal quarrel or some provocation previously existing or suddenly arising, and disconnected with and not pertaining to the business of the master then in the process of transaction, the master is not liable. Gomez v. Great Atl. & Pac. Tea Co., 48 Ga. App. 398, 172 S.E. 750 (1934).

Negligent retention of hospital nurse.

- In a patient's suit against a hospital arising out of a rape by a nurse, summary judgment was proper on the patient's negligent hiring claim, but the patient's negligent retention and premises liability claims were supported by evidence of past sexual assaults at the hospital, including one incident of inappropriate touching by the nurse. Little-Thomas v. Select Specialty Hospital-Augusta, Inc., 333 Ga. App. 362, 773 S.E.2d 480 (2015).

Jury question as to scope of employment.

- Except in plain and palpable cases, it is for the jury to decide the question whether the servant was acting within the scope of and in furtherance of the servant's employment when the servant committed the tortious act in question. Gomez v. Great Atl. & Pac. Tea Co., 48 Ga. App. 398, 172 S.E. 750 (1934).

Am. Jur. 2d.

- 27 Am. Jur. 2d, Employment Relationship, §§ 189 et seq., 217 et seq., 241 et seq., 333 et seq.

C.J.S.

- 30 C.J.S. Employers' Liability for Injuries to Employees, §§ 39 et seq., 71 et seq.

ALR.

- Duty to warn servant of danger of cleaning, adjusting or repairing machinery while in motion, 3 A.L.R. 1035.

Duty of master to warn servant against occupational disease, 6 A.L.R. 355; 105 A.L.R. 80.

Negligence of master toward fellow servant in employing a servant who is physically deficient, 11 A.L.R. 783.

What is embraced by words "works," "ways," "equipment," "machinery," etc., in employers' liability acts, 23 A.L.R. 716.

Duty and liability of master to servant injured by horse belonging to master, 26 A.L.R. 871; 42 A.L.R. 226; 60 A.L.R. 468.

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.

Duty of master providing machine of standard make and in common use to equip same with safety device or guard, 36 A.L.R. 1477.

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

Liability of independent contractors for injuries to third persons by defects in completed work, 41 A.L.R. 8; 123 A.L.R. 1197.

Recovery by commission salesman given exclusive territory where employer breaches contract of employment, 41 A.L.R. 1175.

Liability of contractee and contractor inter se with respect to injuries sustained while the stipulated work is in course of performance, 44 A.L.R. 891.

Liability of the contractee for injuries sustained by the contractor's servants in the course of the stipulated work, 44 A.L.R. 932.

Liability of master for injuries to servant from exposure to weather conditions, 52 A.L.R. 904.

Employer's promise to remedy defect in instrumentality as affecting defense of assumption of risk or contributory negligence, 61 A.L.R. 901.

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.

Right, as against vehicle owner, of one not in his general employment injured while assisting in remedying conditions due to accident to automobile or truck on highway, 72 A.L.R. 1283.

Statute denying to employer defense of assumption of risk as affecting simple tool rule, 91 A.L.R. 786.

Inadequacy of appliance for purpose contemplated by Safety Appliance Act as proximate cause of and ground of liability for injury to employee who was using it for another purpose, 96 A.L.R. 1138.

Inference of master and servant relationship and scope of authority in action for negligent injury from fact that person whose acts or statements are relied upon was apparently performing services for defendant upon latter's premises, 112 A.L.R. 337.

Responsibility for injury or damage by or to W.P.A. worker or other workman employed as a means of reducing unemployment, 120 A.L.R. 1148.

Employer's compliance with specific legal standard prescribed by or pursuant to statute for equipment, structure, or material, as defense to charge of negligence, 159 A.L.R. 870.

Liability of railroad for injury to alighting trainman as a result of condition of track or right of way, 172 A.L.R. 594.

Liability of employer for injury to employee due to his physical unfitness for the work to which he was assigned, 175 A.L.R. 982.

Liability in damages for injury to or death of window washer, 17 A.L.R.2d 637.

Duty of owner of premises to furnish independent contractor or his employee a safe place of work, where contract is for repairs, 31 A.L.R.2d 1375.

Liability of employer, other than carrier, for a personal assault upon customer, patron, or other invitee, 34 A.L.R.2d 372.

Failure to furnish assistance to employee as affecting employer's liability for injury or death of employee, 36 A.L.R.2d 8.

Duty of railroad company to prevent injury of employee due to surface condition of yard, 57 A.L.R.2d 493.

Master's liability for servant's injury or death caused in whole or in part by act of God, 62 A.L.R.2d 796.

Master's liability to servant injured by farm machinery, 67 A.L.R.2d 1120.

Master's liability for servant's condition or injury resulting in dermatitis, 74 A.L.R.2d 1029.

Hammer as simple tool within simple tool doctrine, 81 A.L.R.2d 965.

Shipowner's liability for injury caused to seaman or longshoreman by cargo or its stowage, 90 A.L.R.2d 710.

Master's liability to agricultural worker injured other than by farm machinery, 9 A.L.R.3d 1061.

Private person's duty and liability for failure to protect another against criminal attack by third person, 10 A.L.R.3d 619.

Physician's duties and liabilities to person examined pursuant to physician's contract with such person's prospective or actual employer or insurer, 10 A.L.R.3d 1071.

Liability of travel agents for injuries on tour, 53 A.L.R.3d 1310.

Liability for injury or death of participant in theatrical performance or spectacle, 67 A.L.R.3d 451.

Tort liability for window washer's injury or death, 69 A.L.R.4th 207.

Liability of travel publication, travel agent, or similar party for personal injury or death of traveler, 2 A.L.R.5th 396.

What constitutes "agricultural" or "farm" labor within social-security or unemployment-compensation acts, 60 A.L.R.5th 459.

Who is "employer" for purposes of Occupational Safety and Health Act (29 U.S.C.A. § 651 et seq.), 153 A.L.R. Fed. 303.

Technological feasibility as factor affecting validity of, or obligation of compliance with, standards established under Occupational Safety and Health Act (29 U.S.C.A. §§ 651 et seq.), 72 A.L.R. Fed. 2d 461.

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).

Railroad's liability.

- 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).

Availability of rule as defense.

- 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).

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's representative.

- 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 authorized by master.

- 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).

Liability for own or vice principal's negligence.

- 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).

Negligence in use of furnished appliances.

- 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).

Liability for superintendent and foreperson's negligence.

- 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).

Liability for volunteer.

- 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).

Knowledge of fellow servant's incompetence.

- 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).

Couple driving tractor trailer for company were employees.

- 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 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).

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.

- 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).

Pleadings when negligence of fellow servant alleged.

- 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).

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 directing labor.

- 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).

General superintendent.

- 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).

Authority to employ other servants.

- 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).

Provider of unsafe instrumentalities.

- 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).

Vice principal assuming status of servant.

- 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).

Foreperson assuming status of servant.

- 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).

Assumption of authority.

- 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).

Am. Jur. 2d.

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

C.J.S.

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

ALR.

- 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.

Contracts for benefits in case of injury.

- Contract between an employee and a master, or another acting in the latter's interest, by the terms of which the employee when physically injured, whether as a result of the employee's own negligence or not, or when sick, is to receive pecuniary and other valuable benefits, and which stipulates that the employee's voluntary acceptance of any of such benefits in case of injury is to operate as a release of the master from all liability on account thereof, is not contrary to public policy. Petty v. Brunswick & W. Ry., 109 Ga. 666, 35 S.E. 82 (1900); Houser v. Savannah Elec. Co., 9 Ga. App. 766, 72 S.E. 276 (1911).

No application to contractor.

- In a suit brought by an independent contractor against a billboard owner seeking to recover for injuries that the contractor sustained upon falling from the owner's billboard, O.C.G.A. § 34-7-22 did not apply to preclude the application of a waiver paragraph in a contract between the parties because the facts were undisputed that the contractor was an independent contractor, not an employee of the owner. Holmes v. Clear Channel Outdoor, Inc., 298 Ga. App. 178, 679 S.E.2d 745 (2009).

Cited in New v. Southern Ry., 116 Ga. 147, 42 S.E. 391, 59 L.R.A. 115 (1902); Brown v. Five Points Parking Ctr., 121 Ga. App. 819, 175 S.E.2d 901 (1970).

Am. Jur. 2d.

- 27 Am. Jur. 2d, Employment Relationship, §§ 199, 200.

ALR.

- Validity of contract providing that acceptance of benefits from relief association shall bar action against employer, 12 A.L.R. 477.

Personal liability of servant or agent to third person for injuries caused by the performance or nonperformance of his duties to his employer, 20 A.L.R. 97; 99 A.L.R. 408; 96 A.L.R.2d 208.

Constitutionality of statute relating to release of, or contract of employment for the enforcement of, claims for personal injuries or death, or invalidating contracts exonerating an employer from liability in respect of injury to employee, 84 A.L.R. 1297.

Personal liability of auctioneer to owner or mortgagee for conversion, 96 A.L.R.2d 208.

Provision in employment contract requiring written notice before instituting action, 4 A.L.R.3d 439.

Validity, enforceability, and effect of provision in seamen's employment contract stipulating the maximum recovery for scheduled personal injuries, 9 A.L.R.3d 417.

What constitutes duress by employer or former employer vitiating employee's release of employer from claims arising out of employment, 30 A.L.R.4th 294.

Definition of assumption of risk.

- Assumption of risk is a term of the contract of employment, express or implied from the circumstances of the employment, by which the servant agrees that dangers of injury obviously incident to the discharge of the servants' duty shall be at the servants' risk. Prather v. Richmond & D.R.R., 80 Ga. 427, 9 S.E. 530, 12 Am. St. R. 263 (1888); East Tennessee, V. & Ga. Ry. v. Reynolds, 93 Ga. 570, 20 S.E. 70 (1894); Worlds v. Georgia R.R., 99 Ga. 283, 25 S.E. 646 (1896); Plunkett v. Central of Ga. Ry., 105 Ga. 203, 30 S.E. 728 (1898).

As a general proposition, risk not caused by the master's negligent act or omission is assumed by the servant. Neary v. Georgia Pub. Serv. Co., 27 Ga. App. 238, 107 S.E. 893, cert. denied, 27 Ga. App. 836 (1921).

Employee does not ordinarily assume the risks of negligence of the employer. Louisville & N.R.R. v. Crapps, 62 Ga. App. 437, 8 S.E.2d 413 (1940).

Knowledge of risk.

- Assumption of risk is predicated on knowledge, actual or constructive. A servant does not assume a risk about which the servant did not know or was not bound to know. Western & A.R.R. v. Morgan, 40 Ga. App. 611, 150 S.E. 850 (1929).

Employee is not presumed to have knowledge of hidden dangers requiring scientific knowledge to fully appreciate or to assume the risk thereof; unless the employee is warned or undertakes the work with such knowledge, the employee is not as a matter of law chargeable therewith. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620, 11 S.E.2d 682 (1940).

Equal means of knowing of danger.

- In a suit by a servant for an injury arising from the negligence of the master in failing to furnish proper machinery or appliances or a safe place of work, the servant, to be entitled to recover, must show, among other things, that the servant did not have equal means with the master of knowing of the danger. Abercrombie v. Ivey, 59 Ga. App. 296, 200 S.E. 551 (1938).

Master's knowledge of employee's appreciation of danger.

- Whether the master is negligent in ordering a servant to work under dangerous and hazardous conditions may depend upon the capacity of the servant, due to the servant's age or otherwise, known to the master, to appreciate the danger of the conditions of the employment. Jordan v. Batayias, 53 Ga. App. 538, 186 S.E. 451 (1936).

Nature of risks assumed.

- When a peril is obvious or so patent as to be readily understood by the employee by the reasonable use of the employee's senses, having in view the employee's age, intelligence, and experience, the employee will not be heard to say that the employee did not realize or appreciate it. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).

When one enters the service of another, one impliedly assumes the usual and ordinary risks incident to the employment about which one is engaged; and in discharging the duties which one has undertaken to perform, one is bound to take notice of the ordinary and familiar laws of nature applicable to the subject to which one's employment relates. Hollingsworth v. Thomas, 148 Ga. App. 38, 250 S.E.2d 791 (1978).

Denial of the employer's motion for summary judgment was reversed because any alleged defects in the tractor tire or in removing the tire were known to the employee who attempted to remove the tire on the employee's own, spent hours attempting to do so, encountering difficulty, and used various methods and tools to remove the tire before the employee apparently finally did so using a tool not provided by the employer. Smith v. Found, 343 Ga. App. 816, 806 S.E.2d 287 (2017), cert. denied, 2018 Ga. LEXIS 374 (Ga. 2018).

Obvious risks.

- Obvious risks incident to employment are assumed by the servant in the servant's contract of employment. Howard v. Central of Ga. Ry., 138 Ga. 537, 75 S.E. 624 (1912); International Cotton Mills v. Carroll, 22 Ga. App. 26, 95 S.E. 472 (1918).

Standing in front of tractor operated by inexperienced driver.

- Employee who sued employer for personal injuries should have been aware that standing in front of a large farming tractor, parked on an incline, while a person wholly inexperienced in operating the machinery started the tractor and "eased" the clutch out, was dangerous and was not entitled to recover against an employer as a matter of law. Clayton v. Larisey, 190 Ga. App. 512, 379 S.E.2d 789 (1989).

Ordinary and extraordinary risks.

- Ordinary risks are usually described as being those incident to the business, and do not imply the result of the master's negligence. The expression "extraordinary risks" is generally used to describe the risk arising from the negligence of the master, and they are generally held not to be assumed unless known or obvious. Emanuel v. Georgia & F. Ry., 142 Ga. 543, 83 S.E. 230 (1914); Simowitz v. Register, 60 Ga. App. 180, 3 S.E.2d 231 (1939); Roberts v. Ethridge, 73 Ga. App. 400, 36 S.E.2d 883 (1946).

Waiver of assumption of risk.

- Assumption of risk is a contractual incident of employment; being a contractual implication, it may be vitiated by express agreement or by a repugnant implication arising from particular transactions or communications between the parties. Seagraves v. Abco Mfg. Co., 118 Ga. App. 414, 164 S.E.2d 242 (1968), later appeal, 121 Ga. App. 224, 173 S.E.2d 416 (1970).

Minor's assumption of risk.

- Children under the age of 14 are not to be considered as having assumed the risks of ordinarily patent, obvious and known dangers not within the scope of their capacity to appreciate and avoid. Eagle & Phenix Mills v. Moncrief, 17 Ga. App. 10, 86 S.E. 260 (1915). See also King v. Seaboard Air-Line Ry., 1 Ga. App. 88, 58 S.E. 252 (1907).

Child under the age of 14 assumes only such ordinary risks of employment as the child is capable of appreciating and understanding, and a master who, personally or through an authorized agent, directs such a child to do an act which, if performed according to the means and method provided by the master, would be attended with danger, owes the duty of warning the child of the dangers incident to its performance, and in doing so must take into consideration the child's incapacity to appreciate and understand danger. The duty incumbent upon the child is to exercise due care according to the child's age and the child's own actual capacity, rather than the ordinary care exacted by the general rule of every prudent person. Moore v. Ross, 41 Ga. App. 509, 153 S.E. 575 (1930).

Since a minor 12 years of age does not as a matter of law possess the capacity to appreciate and apprehend dangers which are ordinarily patent and obvious to adults, an adult, in ordering a minor of that age as a servant to work at a place and under circumstances in which the minor is exposed to a danger which is patent and obvious to the employer, may in so employing the minor, be guilty of negligence. Jordan v. Batayias, 53 Ga. App. 538, 186 S.E. 451 (1936).

Fellow servant rule.

- Fellow servant rule is a species of the assumption of risk rule. 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).

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).

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

Duties of master.

- A master must warn a servant of the conditions under which the servant is employed which are liable to engender disease, and must furnish suitable protection from such danger, provided that the master is in a position to have greater knowledge of the danger than the servant. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620, 11 S.E.2d 682 (1940).

As to place, appliances, instrumentalities, and fellow servants, the law places upon the master a personal or positive, sometimes called nondelegable, duty to provide for the master's servant. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206, 45 S.E.2d 280 (1947).

Reasonable care by master.

- Prima facie, a servant does not assume risks which may be obviated by the master's exercise of reasonable care. King v. Seaboard Air-Line Ry., 1 Ga. App. 88, 58 S.E. 252 (1907).

Liability of master.

- Liability of the master to a servant for negligence is strictly limited. Bray v. Westinghouse Elec. Corp., 102 Ga. App. 803, 117 S.E.2d 919 (1960).

Assumption of skill.

- Master is charged with the knowledge of the usual and ordinary dangers to which the master is exposing the employees, and is bound to know the normal condition of the master's premises, and to know of the nature of the constituents and general characteristics of the substances used in the master's business, so that the master can give directions for the conduct thereof with ordinary safety to the master's servants performing the work with ordinary care, and particularly is the master chargeable with knowledge of risks ascertainable only through a knowledge of scientific facts which an uneducated person is not presumed to know; the doctrine that imputes this knowledge to the master is called the "assumption of skill" and for the purpose of determining this knowledge the law has a standard which does not vary with the actual capacity of the particular master, and consequently the master's ignorance is no excuse for a failure to warn. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620, 11 S.E.2d 682 (1940).

Employee's injury.

- Injury to a servant must be the natural and probable consequence of the employer's negligence; such a consequence as, under the surrounding circumstances of the case, might and ought to have been foreseen by the wrongdoer as likely to flow from the wrongdoer's act. Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).

Action for master's negligence.

- Action brought under former Code 1933, § 66-301 (see now O.C.G.A. § 34-7-20) was one for negligence on the part of the master, and when it appeared from the evidence that the servant had equal means with the master of knowing of the defects in machinery and the dangers of employment, and the danger was as obvious to the servant as it was to the master, the servant was not entitled to recovery, notwithstanding any assurances of safety by the master. Swails v. Carpenter, 112 Ga. App. 117, 144 S.E.2d 182 (1965).

In suits for injuries arising from the negligence of the employer in failing to comply with the duties imposed by this section, the employee's petition in order to set forth a cause of action must set out issuable facts constituting not only negligence on the part of the employer, causing the injuries, but also due care on the part of the employee; and it must appear from the allegations that the injured employee did not know, and had no equal means of knowing, all that which is charged as negligence to the employer, and by the exercise of ordinary care could not have known. Bowers v. Louisville & N.R.R., 33 Ga. App. 692, 127 S.E. 667 (1925); Flippin v. Central of Ga. Ry., 35 Ga. App. 243, 132 S.E. 918 (1926); Clark v. Western & A.R.R., 41 Ga. App. 317, 152 S.E. 847 (1930); Holman v. American Auto. Ins. Co., 201 Ga. 454, 39 S.E.2d 850 (1946); Elrod v. Ogles, 78 Ga. App. 376, 50 S.E.2d 791 (1948); A.F. King & Son v. Simmons, 107 Ga. App. 628, 131 S.E.2d 214 (1963); Owensby v. Jones, 109 Ga. App. 398, 136 S.E.2d 451 (1964).

Questions for jury resolution.

- Ordinarily, what constitutes ordinary care, or the lack of it, whether a servant assumed a risk which caused the injury, and similar questions, are mixed issues of law and fact peculiarly for jury resolution, and to some extent must be based on inferences to be drawn from the evidence. Jones v. Aaron, 124 Ga. App. 738, 186 S.E.2d 132 (1971).

Cited in Nobel v. Jones, 103 Ga. 584, 30 S.E. 535 (1898); Western & A.R.R. v. Bradford, 113 Ga. 276, 38 S.E. 823 (1901); Evans v. Mills, 119 Ga. 448, 46 S.E. 674 (1904); Seaboard Air-Line Ry. v. Pierce, 120 Ga. 230, 47 S.E. 581 (1904); Babcock Bros. Lumber Co. v. Johnson, 120 Ga. 1030, 48 S.E. 438 (1904); Crown Cotton Mills v. McNally, 127 Ga. 404, 56 S.E. 452 (1907); Turner v. Seville Gin & Whse. Co., 127 Ga. 555, 56 S.E. 739 (1907); Atlanta & B. Air-Line Ry. v. McManus, 1 Ga. App. 302, 58 S.E. 258 (1907); Cedartown Cotton & Export Co. v. Miles, 2 Ga. App. 79, 58 S.E. 289 (1907); Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308, 58 S.E. 524 (1907); Short v. Cherokee Mfg. Co., 3 Ga. App. 377, 59 S.E. 1115 (1908); Freeman v. Savannah Elec. Co., 130 Ga. 449, 60 S.E. 1042 (1908); Hobbs v. Small, 4 Ga. App. 627, 62 S.E. 91 (1908); Taylor v. Virginia-Carolina Chem. Co., 4 Ga. App. 705, 62 S.E. 470 (1908); Brown v. Rome Mach. & Foundry Co., 5 Ga. App. 142, 62 S.E. 720 (1908); Roland v. Tift, 131 Ga. 683, 63 S.E. 133, 20 L.R.A. (n.s.) 354 (1908); Holland v. Durham Coal & Coke Co., 131 Ga. 715, 63 S.E. 290 (1908); Williams v. Garbutt Lumber Co., 132 Ga. 221, 64 S.E. 65 (1909); Redding v. Central Ga. Tel. Co., 6 Ga. App. 831, 65 S.E. 1068 (1909); Smith v. Southern Ry., 8 Ga. App. 822, 70 S.E. 192 (1911); Mills v. Bartow Lumber Co., 9 Ga. App. 171, 70 S.E. 983 (1911); Elliott v. Tifton Mill & Gin Co., 12 Ga. App. 498, 77 S.E. 667 (1913); Spencer v. Lauer & Harper Co., 14 Ga. App. 35, 81 S.E. 387 (1913); Lawrenceville Oil Mill v. Walton, 143 Ga. 259, 84 S.E. 584 (1915); Green v. Brinson Ry., 16 Ga. App. 639, 85 S.E. 931 (1915); Young v. Stuart Lumber Co., 17 Ga. App. 410, 87 S.E. 149 (1915); Williams v. Southern Ry., 144 Ga. 565, 87 S.E. 771 (1916); Niblett v. LaGrange Mills, 18 Ga. App. 173, 88 S.E. 1009 (1916); Kirbo v. Southern Ry., 18 Ga. App. 187, 89 S.E. 179 (1916); Rush v. Southern Ry., 19 Ga. App. 521, 91 S.E. 898 (1917); City of Atlanta v. Hagan, 20 Ga. App. 822, 93 S.E. 541 (1917); Charleston & W.C. Ry. v. Patton, 22 Ga. App. 554, 96 S.E. 504 (1918); Decatur Lumber Co. v. Fulton, 26 Ga. App. 499, 106 S.E. 609 (1921); Central of Ga. Ry. v. Lindsey, 28 Ga. App. 198, 110 S.E. 636 (1922); Wood v. Pynetree Paper Co., 29 Ga. App. 81, 114 S.E. 83 (1923); Newman v. Griffin Foundry & Mach. Co., 38 Ga. App. 518, 144 S.E. 386 (1928); Atlanta, Birmingham & Coast R.R. v. Mullis, 43 Ga. App. 692, 159 S.E. 893 (1931); Tanner v. Louisville & N.R.R., 45 Ga. App. 734, 165 S.E. 761 (1932); Gartrell v. Russell, 51 Ga. App. 519, 180 S.E. 860 (1935); Story v. Crouch Lumber Co., 61 Ga. App. 210, 6 S.E.2d 86 (1939); Kidd v. Williamson, 61 Ga. App. 890, 8 S.E.2d 590 (1940); Ray v. Western & A.R.R., 62 Ga. App. 609, 9 S.E.2d 92 (1940); Daugherty v. Summerall, 64 Ga. App. 638, 13 S.E.2d 705 (1941); Jackson v. Thompson, 77 Ga. App. 367, 48 S.E.2d 903 (1948); Evans v. Carroll, 85 Ga. App. 227, 68 S.E.2d 608 (1952); Howerdd v. Whitaker, 87 Ga. App. 850, 75 S.E.2d 572 (1953); Hanson v. Atlanta Lodge No. 78 B.P.O. Elks, Inc., 88 Ga. App. 116, 76 S.E.2d 77 (1953); Harris v. Price, 95 Ga. App. 521, 98 S.E.2d 118 (1957); Bray v. Westinghouse Elec. Corp., 102 Ga. App. 803, 117 S.E.2d 919 (1960); Henry v. Adams, 111 Ga. App. 297, 141 S.E.2d 603 (1965); Thigpen v. Executive Comm. of Baptist Convention, 114 Ga. App. 839, 152 S.E.2d 920 (1966); Taff v. Harris, 118 Ga. App. 611, 164 S.E.2d 881 (1968); Webb v. Standard Oil Co., 414 F.2d 320 (5th Cir. 1969); Taylor v. Bolton, 121 Ga. App. 141, 173 S.E.2d 96 (1970); Mathis-Akins Concrete Block Co. v. Tucker, 127 Ga. App. 699, 194 S.E.2d 604 (1972); Murray Chevrolet Co. v. Godwin, 129 Ga. App. 153, 199 S.E.2d 117 (1973); Dodd v. Clary, 135 Ga. App. 296, 217 S.E.2d 397 (1975); Butler v. Shirah, 154 Ga. App. 111, 267 S.E.2d 647 (1980).

Selection and retention of competent servants.

- Duty of the master to select and retain only competent servants is not absolute, but is to be measured by knowledge, actual or constructive, of the probable results of the master's conduct. Likewise, when a servant has knowledge, or has an equal opportunity with the master to acquire knowledge, of the incompetency of a fellow servant there can be no recovery; in such a case the servant will be said to have "waived" the negligence of the master. Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).

Knowledge of fellow servants' incompetence.

- If the plaintiff knew that the plaintiff's fellow servants, about whose conduct the plaintiff is complaining, were retained after the plaintiff 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).

Master's duty.

- Master is under an absolute duty to a servant to furnish the servant a safe working place and to warn of unusual or newly developed dangers which arise in the course of the employment and which are likely to escape an ordinarily prudent servant's knowledge under the circumstances. The servant may, without creating an imputation of negligence against oneself, rely upon the master's performance of these duties until such time as the servant shall discover, or in the exercise of ordinary diligence should discover, that there has been a failure in this respect upon the master's part. Simowitz v. Register, 60 Ga. App. 180, 3 S.E.2d 231 (1939).

Duty to furnish a safe place to work relates to the equipment of houses, plants and other similar structures, though, of course, it is a general duty of the master, as to all times and all places, not to expose the master's servant to an extraordinary hazard, of which the master has knowledge, actual or constructive, and of which the servant is ignorant, and could not by ordinary diligence acquire knowledge. Atkinson v. Empire Printing & Box Co., 76 Ga. App. 206, 45 S.E.2d 280 (1947).

Knowledge that fumes or dust poisonous.

- Master must take into account the properties of such substances as the master employs for the purposes of the master's business and the operation of familiar physical laws upon these substances, and the master is chargeable with knowledge of the fact that fumes or dust given off by various substances used in industrial processes are poisonous to persons who inhale them. Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620, 11 S.E.2d 682 (1940).

Employer's duty not abated because of construction, renovation.

- It is the duty of the employer to provide its employees with a safe workplace and to warn them of any unusual conditions that may exist, or of any conditions of which employees may have no knowledge, and this duty is not abated when construction or renovation is being done at the workplace; indeed, it might be argued that the employer's duty is enhanced in such situations, inasmuch as it would have knowledge which the ordinary employee might not possess. Church v. SMS Enters., 186 Ga. App. 791, 368 S.E.2d 554 (1988).

Assumption of risk.

- Dangers arising from an unsafe place are not included within the risks assumed by the servant. Nashville, C. & St. L. Ry. v. Hilderbrand, 48 Ga. App. 140, 172 S.E. 87 (1933); Middlebrooks v. Atlanta Metallic Casket Co., 63 Ga. App. 620, 11 S.E.2d 682 (1940); Owensby v. Jones, 109 Ga. App. 398, 136 S.E.2d 451 (1964).

Inspections by servant.

- Servant or employee is not required to make a special inspection to see the condition of the place furnished to the servant, but if, by exercising ordinary care, the servant can discover the condition of it, it is the servant's duty to do so. Spivey v. Lovett & Brinson, 48 Ga. App. 335, 172 S.E. 658 (1934); Hopkins v. Barron, 61 Ga. App. 168, 6 S.E.2d 96 (1939).

Employee's duty of care.

- Adult employee is to exercise ordinary care to protect oneself from being injured by defective or dangerous machinery; the employee is to exercise that degree of care which might reasonably be expected of an ordinarily prudent person under like circumstances. Georgia Cotton Oil Co. v. Jackson, 112 Ga. 620, 37 S.E. 873 (1901).

Inspection by employee.

- Servant is under no obligation to inspect appliances to discover concealed dangers which would not be disclosed by superficial observation. Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).

Employee is under no duty to inspect a ladder supplied by an employer to discover defects which would not be discernible by mere observation. A.F. King & Son v. Simmons, 107 Ga. App. 628, 131 S.E.2d 214 (1963).

Employee's knowledge of defect.

- In a farm employee's action for negligence against an employer, there was no basis for a recovery for furnishing defective machinery under O.C.G.A. § 34-7-20, when the evidence was uncontroverted that the employee had equal knowledge with the employer of a defect in the "power takeoff" of the tractor, the employee's claim was barred by the plain language of O.C.G.A. § 34-7-23 and the trial court erred in giving a separate instruction on the liability for furnishing defective machinery which was not adjusted to the evidence. Strickland v. Howard, 214 Ga. App. 307, 447 S.E.2d 637 (1994).

Latent defects.

- Though a servant is bound to observe open and obvious dangers such as would be disclosed by the exercise of ordinary care, the servant has the right to assume that the master has performed the duty of furnishing the servant with a safe place to work and is under no obligation to inspect the work place in order to discover latent defects not open to ordinary observation. Owensby v. Jones, 109 Ga. App. 398, 136 S.E.2d 451 (1964).

In a case of latent defects - those which are discoverable by proper inspection - the master is necessarily held to a higher standard of conduct than the servant, since the master owes to the servant the duty of inspection. Nashville, C. & St. L. Ry. v. Hilderbrand, 48 Ga. App. 140, 172 S.E. 87 (1933); Owensby v. Jones, 109 Ga. App. 398, 136 S.E.2d 451 (1964).

Nature of risks assumed.

- If the danger from the continued use of a defective tool or instrument is so obvious or apparent that an ordinarily prudent person would not continue to use the instrument, a servant, although the servant may have received assurances of safety from the master, may not continue its use and hold the master liable for ensuing injury, as the use by the servant of an obviously dangerous instrument amounts to the failure to use ordinary care to avoid the consequences of the master's negligence. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).

Adult servant of ordinary intelligence will be held to be affected with knowledge of a manifest risk or danger incident to the doing of a particular thing in the operation of a machine, during the servant's employment, although the servant may be inexperienced as to such operation and though the master may have failed to instruct the servant in respect thereto. Self v. West, 82 Ga. App. 708, 62 S.E.2d 424 (1950).

Compliance with master's order.

- It is actionable negligence for a master to order a servant to work with an unsafe instrumentality, and an assurance of safety, coupled with the order, not only aggravates the master's negligence, but also relieves the servant from the assumption of the risk; the assurance of safety likewise makes the question of the servant's contributory negligence one for solution by the jury, unless the danger be so obvious that to undertake to encounter it amounts to plain rashness. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).

In an action for injuries to a servant resulting from the servant's compliance with a direct and specific command of the master given with reference to an instrumentality by which the master's work is to be performed, the danger or risk incurred by the servant is not assumed by virtue of the employment, unless it involves a violation of law or the act required is so obviously dangerous that no person of ordinary prudence would undertake to perform it. Louisville & N.R.R. v. Crapps, 62 Ga. App. 437, 8 S.E.2d 413 (1940).

If a servant points out a danger and the master orders the servant to pursue the dangerous activity anyway, the master is liable for any injury which results. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).

Abrogation of servant's assumption of risk.

- While ordinarily the law reads into contracts of employment an agreement on the servant's part to assume the known risks of the employment so far as the servant has the capacity to realize and comprehend them, yet this implication may be abrogated by an express or implied agreement to the contrary; if the servant complains to the master that the instrumentality appears to be dangerous, and thereupon the master commands the servant to proceed with the work and assures the servant there is no danger the law implies a quasi new agreement whereby the master relieves the servant of the servant's former assumption of the risk and places responsibility for the ensuing injury upon the master. Bush v. West Yellow Pine Co., 2 Ga. App. 295, 58 S.E. 529 (1907); Massee & Felton Lumber Co. v. Ivey, 12 Ga. App. 583, 77 S.E. 1130 (1913); Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936); Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941); Borochoff v. Fowler, 98 Ga. App. 411, 105 S.E.2d 764 (1958), later appeal, 104 Ga. App. 401, 122 S.E.2d 157 (1961), rev'd on other grounds sub nom. Southern Wire & Iron, Inc. v. Fowler, 217 Ga. 727, 124 S.E.2d 738 (1962).

When the master commanded the servant to proceed with work which the master knows is dangerous with the assurance to the servant that it was not dangerous, such an act on the part of the master relieved the servant of the implied agreement of assumption of risk as to the particular activity warranted as safe, and the master cannot set up as a defense the assumption of risk set forth in this section. Swails v. Carpenter, 112 Ga. App. 117, 144 S.E.2d 182 (1965).

If one engaged to perform a service doubts the safety of performing the service but thereafter proceeds with the work in reliance on the employer's assurance that there is no danger, then unless the danger is so obvious that no prudent person would expose oneself to it, the law implies a new quasi-agreement superseding the assumption of risk and placing responsibility for the resulting injuries on the employer. Seagraves v. Abco Mfg. Co., 118 Ga. App. 414, 164 S.E.2d 242 (1968), later appeal, 121 Ga. App. 224, 173 S.E.2d 416 (1970).

Reliance on promises to rectify danger.

- Fault or "assumption of risk" implied from a servant's knowledge that a tool, instrument, appliance, piece of machinery, or place of work is defective or dangerous is suspended by the master's promise to repair, made in response to the servant's complaint, so that if the servant is induced by such promise to continue at work the servant may recover for any injury which the servant sustains by reason of such defect within a reasonable time after the making of the promise. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).

If a servant having a right to abandon the service because it is dangerous, refrains from doing so in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until the master makes the assurances good, and moreover, the assurances remove all ground for the argument that the servant by continuing the employment, engages to assume its risks. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936).

Employee's appreciation of danger.

- When a servant with knowledge of a dangerous condition proceeds with the performance of the servant's duties for a reasonable time, relying upon a promise by the master to rectify such condition, the servant will not be held to have assumed the risk of injury from such dangerous situation or instrumentality, unless it should appear that the danger was so patent that no person of ordinary prudence would carry on work under such conditions and circumstances. Baker v. Augusta Veneer Co., 44 Ga. App. 383, 161 S.E. 676 (1931).

Although an employee may have had knowledge, as of a physical fact, of the defective condition of a tool, appliance or place, by reason of which an employee has sustained an injury, it by no means follows that the employee must have appreciated the danger to which the employee was exposed thereby; if this is shown to have been the case, the employee's right of recovery is not defeated, for it is an appreciation of the danger, not mere knowledge of the defect by which the danger is threatened, that bars the employee's action. Atlanta, Birmingham & Coast R.R. v. King, 55 Ga. App. 1, 189 S.E. 580 (1936); Simowitz v. Register, 60 Ga. App. 180, 3 S.E.2d 231 (1939).

It is the employee's appreciation of the danger, not mere knowledge of the defect by which the danger is threatened, that bars the employee's action. When, however, a peril is obvious or so patent as to be readily understood by the employee by the reasonable use of the employee's senses, having in view the employee's age, intelligence, and experience, the employee will not be heard to say that the employee did not realize or appreciate it. Simowitz v. Register, 60 Ga. App. 180, 3 S.E.2d 231 (1939).

If a servant cannot reasonably rely on a master's "assurances" that a hazardous condition will be corrected, the servant must bear the loss from any injury resulting from obvious dangers, despite the fact that the servant's actions were sanctioned by the master. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).

When a servant voluntarily undertook climbing a ladder for 20 years, which the servant described as a very dangerous activity and which the servant knew to be risky, the employer is not liable, despite the assurances to the servant that the ladder's dangerous condition would be repaired, since the servant assumed the risk. Webb v. Standard Oil Co., 451 F.2d 284 (5th Cir. 1971).

Pleadings.

- Deficiency may be sufficiently alleged by stating that the particular contrivance was so constructed or maintained that it gave forth a result which it was designed to prevent, and which such contrivances, as they are usually constructed and maintained, do prevent. Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).

Defect may be described by showing that the machine was in a condition that produced certain definitely described results, which a machine not defective would not and should not produce. It is not necessary to describe minutely or particularly the physical appearance of the parts alleged to be defective. Alford v. Zeigler, 65 Ga. App. 294, 16 S.E.2d 69 (1941).

In an action for damages resulting from bodily injury by an employee against an employer it must be shown either that the danger was not equally apparent to both parties but rested within the superior knowledge of the master, or that, if the servant was following a direct order which appeared to be dangerous but was yet not so obviously dangerous that no reasonably prudent person would undertake to perform it, the servant remonstrated and the master, by thereafter assuring the servant that there was no danger, in effect relieved the servant from the servant's former assumption of risk and the responsibility for resulting personal injuries. Palmer v. Webb, 109 Ga. App. 44, 135 S.E.2d 73 (1964).

Am. Jur. 2d.

- 27 Am. Jur. 2d, Employment Relationship, § 293 et seq.

C.J.S.

- 30 C.J.S. Employers' Liability for Injuries to Employees, § 274 et seq.

ALR.

- Duty of master to warn servant against occupational disease, 6 A.L.R. 355; 105 A.L.R. 80.

Contributory negligence or assumption of risk in disobeying rules or directions of master under counter directions by superior, 23 A.L.R. 315.

Duty of master providing machine of standard make and in common use to equip same with safety device or guard, 36 A.L.R. 1477.

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

Duty and liability of master to servant injured by draft animal belonging to master, 42 A.L.R. 226; 60 A.L.R. 468.

Liability of contractee and contractor inter se with respect to injuries sustained while the stipulated work is in course of performance, 44 A.L.R. 891.

Liability of master for injuries to servant from exposure to weather conditions, 52 A.L.R. 904.

Employer's promise to remedy defect in instrumentality as affecting defense of assumption of risk or contributory negligence, 61 A.L.R. 901.

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.

Assumption of risk, under Federal Employers' Liability Act, of excessive speed or failure to give engine signals, 71 A.L.R. 459.

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

Statute denying to employer defense of assumption of risk as affecting simple tool rule, 91 A.L.R. 786.

Inadequacy of appliance for purpose contemplated by Safety Appliance Act as proximate cause of and ground of liability for injury to employee who was using it for another purpose, 96 A.L.R. 1138.

Construction and application of 1939 amendment of Federal Employers' Liability Act regarding assumption of risk, 143 A.L.R. 978.

Liability of railroad for injury to alighting trainman as a result of condition of track or right of way, 172 A.L.R. 594.

Liability of employer for injury to employee due to his physical unfitness for the work to which he was assigned, 175 A.L.R. 982.

Defenses of fellow servant and assumption of risk in actions involving injury or death of member of airplane crew, ground crew, or mechanic, 13 A.L.R.2d 1137.

Liability in damages for injury to or death of window washer, 17 A.L.R.2d 637.

Contributory negligence, assumption of risk, or related defenses as available in action based on automobile guest statute or similar common law rule, 44 A.L.R.2d 1342.

Liability of proprietor of store, office, or similar business premises for injury from fall on floor made slippery by tracked-in or spilled water, oil, mud, snow, and the like, 62 A.L.R.2d 6.

Master's liability to servant injured by farm machinery, 67 A.L.R.2d 1120.

Master's liability for servant's condition or injury resulting in dermatitis, 74 A.L.R.2d 1029.

Hammer as simple tool within simple tool doctrine, 81 A.L.R.2d 965.

Shipowner's liability for injury caused to seaman or longshoreman by cargo or its stowage, 90 A.L.R.2d 710.

Master's liability to agricultural worker injured other than by farm machinery, 9 A.L.R.3d 1061.

Premises liability: proceeding in the dark on inside steps or stairs as contributory negligence, 25 A.L.R.3d 446.

Tort liability for window washer's injury or death, 69 A.L.R.4th 207.

Employer's liability to employee or agent for injury or death resulting from assault or criminal attack by third person, 40 A.L.R.5th 1.

ALR.

- Persons or corporations engaged in local transportation of goods as common carriers, 18 A.L.R. 1316.

Company engaged exclusively or mainly in furnishing switching service as carrier engaged in interstate commerce, 38 A.L.R. 1147.

One operating bus or stage as common carrier, 42 A.L.R. 853.

Constitutionality of section.

- Portion of this section which provided that common carriers by railroad shall be liable to the "next of kin dependent upon" an employee of the common carrier when there was no widow or spouse or child or children of such employee was not unconstitutional on the ground that it conflicted with the equal protection clause of the federal Constitution. Georgia S. & Fla. Ry. v. Adkins, 156 Ga. 826, 120 S.E. 610 (1923).

Intended beneficiaries.

- Right of action to recover for a homicide is not for the benefit of the decedent's estate, or for all of the heirs at law, but is for the benefit solely of certain designated beneficiaries named in the statutes. Cooper v. Cooper, 30 Ga. App. 710, 119 S.E. 335 (1923).

Presumption of employer's negligence.

- Presumption of negligence against the employer "in case death results from injury to the employee," created by this section, was a part of the integral right to recover, and was not alone a rule of evidence. Wallace v. Southern Ry., 10 Ga. App. 90, 72 S.E. 606 (1911).

Action against federal receiver.

- Ga. L. 1909, p. 160 (see now O.C.G.A. Art. 3, Ch. 7, T. 34) was applicable to an action brought, under authority of former Civil Code 1910, § 2788 (see now O.C.G.A. § 34-7-45), by an employee against a federal receiver of a railroad operated partially within the state. Atkinson v. Swords, 11 Ga. App. 167, 74 S.E. 1093 (1912).

Cited in Wrightsville & T.R.R. v. Tompkins, 9 Ga. App. 154, 70 S.E. 955 (1911); Georgia C. & P.R.R. v. Hines, 138 Ga. 713, 76 S.E. 60 (1912); Massee & Felton Lumber Co. v. Georgia & F. Ry., 12 Ga. App. 436, 77 S.E. 366 (1913); Tidwell v. Central of Ga. Ry., 140 Ga. 250, 78 S.E. 898 (1913); Central of Ga. Ry. v. Allen, 140 Ga. 333, 78 S.E. 1052 (1913); Southern Ry. v. Diseker, 13 Ga. App. 799, 81 S.E. 269 (1913); Williams v. Western & A.R.R., 142 Ga. 696, 83 S.E. 525 (1914); Central of Georgia Ry. Co. v. Bessinger, 17 Ga. App. 617, 87 S.E. 920 (1916); Western & A.R.R. v. Smith, 144 Ga. 737, 87 S.E. 1082 (1916); Central of Ga. Ry. v. DeLoach, 18 Ga. App. 362, 89 S.E. 433 (1916); Western & A.R.R. v. State, 23 Ga. App. 225, 97 S.E. 878 (1919); Sherrod v. Atlanta B. & A. Ry., 27 Ga. App. 510, 108 S.E. 908 (1921); Dunbar v. Hines, 152 Ga. 865, 111 S.E. 396 (1922); Davis v. Menefee, 34 Ga. App. 813, 131 S.E. 527 (1926); Atlantic C.L.R.R. v. Solomon, 37 Ga. App. 737, 141 S.E. 917 (1928); Threatt v. American Mut. Liab. Ins. Co., 173 Ga. 350, 160 S.E. 379 (1931); Brooks v. Sessoms, 53 Ga. App. 453, 186 S.E. 456 (1936); Thompson v. Watson, 186 Ga. 396, 197 S.E. 774 (1938); Louisville & N.R.R. v. Crapps, 62 Ga. App. 437, 8 S.E.2d 413 (1940); Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).

Recovery of diminished damages.

- Injured employee is no longer required to show that the employee is free from all blame. In cases in which the negligence of the employee in some degree, less than the lack of ordinary care, contributed to the injury, the employee may recover diminished damages. Southern Ry. v. Perdue, 171 Ga. 134, 154 S.E. 793 (1930).

Pecuniary damages.

- Employee's right of action to recover damages to compensate the employee for expenses, loss of time, suffering, etc., did not survive the employee's death, but the existence of such right in the employee's lifetime did not destroy the dependent's right under the statute to recover for pecuniary damages consequent upon the death; and this section declared two distinct and independent liabilities, resting upon the common foundation of a wrongful injury, but based upon altogether different principles. Dameron v. Southern Ry., 44 Ga. App. 444, 161 S.E. 641 (1931).

Measure of damages.

- Measure of damages for a negligent homicide falling within the purview of former Civil Code 1910, § 2782 (see now O.C.G.A. § 34-7-41) was the "full value of the life of the deceased," which, by reference to former Civil Code 1910, § 4425 (see now O.C.G.A. § 51-4-1), was amplified to mean "the full value of the life of the deceased without deduction for necessary or other personal expenses of the deceased had he lived." Atkinson v. Hardaway, 10 Ga. App. 389, 73 S.E. 556 (1912).

Pleading under section.

- Since this section gave a prior right of action to beneficiaries other than the plaintiff, the petition must negative the existence of any person who had such primary right to sue. Lamb v. Tucker, 146 Ga. 216, 91 S.E. 66 (1916).

When right of action arises.

- Right of action afforded to parents of a railroad employee for homicide of such employee does not arise until the death of the employee; consequently, the cause of action is not barred before expiration of two years from the death of the employee, even though more than two years may elapse between the time of injury which results in death. Dameron v. Southern Ry., 44 Ga. App. 444, 161 S.E. 641 (1931).

Settlement prior to death.

- Settlement by person injured, prior to the person's death, of right of action arising by reason of injury will bar recovery for subsequently resulting death. Dameron v. Southern Ry., 44 Ga. App. 444, 161 S.E. 641 (1931).

Venue of action.

- The venue of a cause of action, under this section, against a railway company for a negligent homicide was in the county in which the fatal injury was inflicted, and not in the county where the injured person may have died. The cause of action inheres in the wrong as consummated by the injury, and not in the death itself. Atkinson v. Hardaway, 10 Ga. App. 389, 73 S.E. 556 (1912).

Prima facie case.

- Plaintiff makes a prima facie case in one action, under this section, by merely showing that the decedent met death while discharging the duties of decedent's employment. Atkinson v. Hardaway, 10 Ga. App. 389, 73 S.E. 556 (1912); Walton v. Georgia, F. & A. Ry., 12 Ga. App. 106, 76 S.E. 1060 (1913), later appeal, 15 Ga. App. 191, 82 S.E. 815 (1914).

In a case in which the employee is injured by a coemployee in a transaction in which the injured employee participated, the employee must, in order to make a prima facie case and change the onus, prove the fact and extent of the employee's injury and must show either that the employee was not negligent, that is, that the employee was not lacking in ordinary care for the employee's own safety and that the employee could not by the exercise of ordinary care have prevented the consequences to oneself of the negligence of a coemployee; or that the coemployee was lacking in ordinary care in doing the act by which the employee was injured. Southern Ry. v. Perdue, 171 Ga. 134, 154 S.E. 793 (1930).

Presumption of employer's negligence.

- When action was brought by the administratrix of a deceased employee, who was engaged as a car inspector of receivers operating a railroad as a common carrier, whose death was caused by being run over by an engine of the carrier, alleged to have been negligently run at an improper speed, without proper signals, and without any lookout, though it was running backward through a railroad yard where many employees were constantly at work, a presumption of negligence arose, under this section. Atkinson v. Alexander, 142 Ga. 124, 82 S.E. 561 (1914).

In an action for the homicide of an employee of a railroad company, under this section, a presumption of negligence against the company did not arise upon a prima facie showing that the deceased met death while discharging the duties of employment. The presumption arises only upon proof that the deceased was killed by the running of the locomotives, or cars, or other machinery of the company, or from an act done by some person in its employment and service. Smith v. Southern Ry., 20 Ga. App. 609, 93 S.E. 166 (1917).

Presumption is rebuttable.

- Presumption of negligence against the employer, arising under this section, from death of a railroad employee, is not conclusive, and, if rebutted by uncontradicted and unimpeached evidence, the court should direct the verdict for the defendant. Walker v. Charleston & W.C. Ry., 8 F.2d 725 (5th Cir. 1925).

Jury charge.

- Charge of the trial court to the effect that proof of injury by the operation of railroad cars makes out a prima facie case for the injured party which can only be rebutted by the employer by proof of one of three things: 1) that its officers, agents, or employees were in the exercise of ordinary care on that occasion and were not negligent; or 2) that the person killed brought about their own death or injury by carelessness amounting to a failure to exercise ordinary care; or 3) that the deceased, by the exercise of ordinary care, could have avoided the consequences of the defendant's negligence, was erroneous because the charge had the effect of telling the jury that it can weigh the presumption stated in this section against the evidence. Gainesville M.R.R. v. Floyd, 73 Ga. App. 661, 37 S.E.2d 725 (1946).

Am. Jur. 2d.

- 32B Am. Jur. 2d, Federal Employers' Liability and Compensation Acts, § 14 et seq.

ALR.

- Intoxication as affecting contributory negligence of one killed or injured at a railroad crossing, 36 A.L.R. 336.

Employer's promise to remedy defect in instrumentality as affecting defense of assumption of risk or contributory negligence, 61 A.L.R. 901.

Constitutionality of statute which imposes liability enforceable in an action at law upon an employer not within workmen's compensation act, for injury to or death of employee, without fault on employer's part, 129 A.L.R. 1124.

Railroad employee injured while engaged in removing weeds, brush, etc., from roadbed or right of way, as within Federal Employers' Liability Act, 143 A.L.R. 481.

Employer's compliance with specific legal standard prescribed by or pursuant to statute for equipment, structure, or material, as defense to charge of negligence, 159 A.L.R. 870.

Liability of railroad for injury to alighting trainman as a result of condition of track or right of way, 172 A.L.R. 594.

Failure of equipment required by Federal Safety Appliance Acts as constituting actionable wrong, 16 A.L.R.2d 654.

Defect in appliance or equipment as proximate cause of injury to railroad employee in repair or investigation thereof, 30 A.L.R.2d 1192.

Finding of decedent's body on or near tracks as creating presumption or inference of railroad's negligence, or as affecting burden of proof relating thereto, 40 A.L.R.2d 881.

Duty of railroad company toward employee with respect to close clearance of objects alongside tracks, 50 A.L.R.2d 674.

Duty of railroad company to prevent injury of employee due to surface condition of yard, 57 A.L.R.2d 493.

Contributory negligence of railroad employee in jumping from moving train or car to avoid collision or other injury, 58 A.L.R.2d 1232.

Master's liability for servant's injury or death caused in whole or in part by act of God, 62 A.L.R.2d 796.

Liability, because of improper loading, of railroad consignee or his employee injured while unloading car, 29 A.L.R.3d 1039.

Right of spouse to maintain action for wrongful death as affected by fact that injury resulting in death occurred before marriage, 69 A.L.R.3d 1046.

Modern development of comparative negligence doctrine having applicability to negligence actions generally, 78 A.L.R.3d 339.

Employer's liability to employee or agent for injury or death resulting from assault or criminal attack by third person, 40 A.L.R.5th 1.

Constitutionality of section.

- Section was constitutional. Georgia C. & P.R.R. v. Hines, 138 Ga. 713, 76 S.E. 60 (1912).

Applicability of section.

- Section referred only to cases involving the injury to or death of an employee of a common carrier by a railroad. Willis v. Jones, 89 Ga. App. 824, 81 S.E.2d 517 (1954).

Effect of employee's contributory negligence.

- Under this section, contributory negligence amounting to a failure to exercise ordinary care will absolutely bar recovery, while contributory negligence of a less degree will diminish the recovery. Seaboard Air-Line Ry. v. Hunt, 10 Ga. App. 273, 73 S.E. 588 (1912).

Comparative negligence.

- Comparative negligence doctrine denies any recovery if the plaintiff's negligence equals or exceeds the defendant's. Thus, if each party is 50 percent at fault, there can be no recovery. But should the plaintiff's negligence be 49 percent, the plaintiff is entitled to recover 51 percent of the plaintiff's damages. Southern Ry. v. Brunswick Pulp & Paper Co., 376 F. Supp. 96 (S.D. Ga. 1974).

Last clear chance doctrine.

- If both the plaintiff and the defendant are negligent, the latter can be found solely liable for all the damage if the defendant had a last clear chance to avoid the injury and did not exercise ordinary care. Southern Ry. v. Brunswick Pulp & Paper Co., 376 F. Supp. 96 (S.D. Ga. 1974).

Servant's right of recovery barred.

- Selection of an unsafe or a dangerous method of performing work when a reasonably safe method is apparent will bar a servant's right of recovery in the event the servant is injured. Gay v. Osteen, 56 Ga. App. 224, 192 S.E. 539 (1937).

Erroneous charge of section.

- Use of the word "may" for "shall" by the court charging this section to the jury was error. Central of Ga. Ry. v. Brown, 138 Ga. 107, 74 S.E. 839 (1912).

Cited in Georgia R.R. v. Hunter, 12 Ga. App. 294, 77 S.E. 176 (1913); Massee & Felton Lumber Co. v. Georgia & F. Ry., 12 Ga. App. 436, 77 S.E. 366 (1913); Atkinson v. Boggs, 16 Ga. App. 738, 86 S.E. 62 (1915); Louisville & N.R.R. v. Layton, 243 U.S. 617, 37 S. Ct. 456, 61 L. Ed. 931 (1917); Central of Ga. Ry. v. Hartley, 25 Ga. App. 110, 103 S.E. 259 (1920); Central of Ga. Ry. v. Lindsey, 28 Ga. App. 198, 110 S.E. 636 (1922); Robinson v. State, 158 Ga. 47, 122 S.E. 886 (1924).

Am. Jur. 2d.

- 32B Am. Jur. 2d, Federal Employers' Liability and Compensation Acts, §§ 7, 28 et seq., 69.

ALR.

- Right of servant to rely upon performance by another of the duty, equally incumbent upon himself, of complying with the "blue flag rule," 8 A.L.R. 870.

Liability for injury to window washer, 28 A.L.R. 622.

Intoxication as affecting contributory negligence of one killed or injured at a railroad crossing, 36 A.L.R. 336.

Employer's promise to remedy defect in instrumentality as affecting defense of assumption of risk or contributory negligence, 61 A.L.R. 901.

Construction and effect of comparative negligence rule where there are more than one defendant, or where negligence of nonparties contributes to the injury, 92 A.L.R. 691.

Statute abolishing or modifying contributory negligence rule in certain class of cases or situations, as denial of equal protection of the laws, 142 A.L.R. 631.

Liability of railroad for injury to alighting trainman as a result of condition of track or right of way, 172 A.L.R. 594.

Contributory negligence of railroad employee in jumping from moving train or car to avoid collision or other injury, 58 A.L.R.2d 1232.

Contributory negligence of adult struck by train while walking or standing beside railroad track, 63 A.L.R.2d 1226.

Comparative negligence rule where misconduct of three or more persons is involved, 8 A.L.R.3d 722.

Premises liability: proceeding in the dark across interior premises as contributory negligence, 28 A.L.R.3d 605.

Liability, because of improper loading, of railroad consignee or his employee injured while unloading car, 29 A.L.R.3d 1039.

Retrospective application of state statute substituting rule of comparative negligence for that of contributory negligence, 37 A.L.R.3d 1438.

Statutory construction.

- Provision of former Code 1933, § 66-403 (see now O.C.G.A. § 34-7-43) which abolished the defense of the assumption of risk when there had been a violation by the common carrier of any statute enacted for the safety of the employee has reference to statutes specifically applicable to the operations and equipment of such carriers and was not intended to, and cannot properly, apply to the provisions of former Code 1933, § 66-301 (see now O.C.G.A. § 34-7-20). Southern Ry. v. Roberts, 206 F.2d 508 (5th Cir. 1953).

Assumption of risk and contributory negligence.

- Assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while lack of ordinary care for one's own safety, or contributory negligence, is a matter of some fault or departure from the standard of reasonable conduct. Wright v. Concrete Co., 107 Ga. App. 190, 129 S.E.2d 351 (1962).

Assumption of risk and contributory negligence may coexist, or either may exist without the other. The difference is frequently one between risks which were in fact known to the plaintiff, or so obvious that the plaintiff must be taken to have known of them, and risks which plaintiff merely might have discovered by the exercise of ordinary care. Wright v. Concrete Co., 107 Ga. App. 190, 129 S.E.2d 351 (1962).

Cited in Massee & Felton Lumber Co. v. Georgia & F. Ry., 12 Ga. App. 436, 77 S.E. 366 (1913); Atkinson v. Boggs, 16 Ga. App. 738, 86 S.E. 62 (1915).

Am. Jur. 2d.

- 32B Am. Jur. 2d, Federal Employers' Liability and Compensation Acts, § 6.

ALR.

- Employer's promise to remedy defect in instrumentality as affecting defense of assumption of risk or contributory negligence, 61 A.L.R. 901.

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

Construction and application of 1939 amendment of Federal Employers' Liability Act regarding assumption of risk, 143 A.L.R. 978.

Liability of railroad for injury to alighting trainman as a result of condition of track or right of way, 172 A.L.R. 594.

Liability of employer for injury to employee due to his physical unfitness for the work to which he was assigned, 175 A.L.R. 982.

Liability, because of improper loading, of railroad consignee or his employee injured while unloading car, 29 A.L.R.3d 1039.

Constitutionality of section.

- Section did not violate U.S. Const., amend. 14. Washington v. Atlantic Coast Line R.R., 136 Ga. 638, 71 S.E. 1066, 38 L.R.A. (n.s.) 867 (1911).

Cited in Louisville & N.R.R. v. Bradford, 135 Ga. 522, 69 S.E. 870 (1910); Houser v. Savannah Elec. Co., 9 Ga. App. 766, 72 S.E. 276 (1911); Massee & Felton Lumber Co. v. Georgia & F. Ry., 12 Ga. App. 436, 77 S.E. 366 (1913).

Am. Jur. 2d.

- 32B Am. Jur. 2d, Federal Employers' Liability and Compensation Acts, §§ 8, 9.

ALR.

- Independent contractor: remedial rights in respect of injuries caused by breaches of positive duties correlative to corporate franchises, 28 A.L.R. 122.

Right of setoff as between proceeds of life insurance and indebtedness of insured to insurer, 101 A.L.R. 1517.

Release or contract after injury as affected by provision of Federal Employers' Liability Act invalidating contract, rule, or device to exempt carrier from liability, 166 A.L.R. 648.

Validity, construction, and effect of agreement, in connection with real-estate lease or license by railroad, for exemption from liability or for indemnification by lessee or licensee, for consequences of railroad's own negligence, 14 A.L.R.3d 446.

Applicability.

- Georgia law (see now O.C.G.A. Art. 3, Ch. 7, T. 34) was applicable to a suit brought under authority of this section by an employee against a federal receiver of a railroad operated partially within the state. Atkinson v. Swords, 11 Ga. App. 167, 74 S.E. 1093 (1912).

Consent of appointing court not necessary.

- Section was an exception to the general rule that before an action can be maintained against a receiver appointed by the courts of Georgia, the consent of the appointing court was necessary. Bugg v. Lang, 35 Ga. App. 704, 134 S.E. 623 (1926).

When consent of appointing court necessary.

- Receiver of a corporation, without the permission of the court which appointed the receiver, cannot be sued for any acts of negligence of the corporation prior to appointment as receiver. Harrell v. Atkinson, 9 Ga. App. 150, 70 S.E. 954 (1911).

Effect upon federal receivers.

- Authority extended under federal statute for actions in state courts against federal receivers is paramount, and was in no way affected by this section. Bugg v. Lang, 35 Ga. App. 704, 134 S.E. 623 (1926).

Lien subject to debt due United States.

- A debt of the railroad to the United States has priority over a lien created by former Civil Code 1910, § 2788 (see now O.C.G.A. § 34-7-45). Piedmont Corp. v. Gainesville & N.W.R.R., 30 F.2d 525 (N.D. Ga. 1929).

Effect of appointment on limitations.

- Running of the statute of limitations is not affected by the mere appointment of a receiver. Cain v. Seaboard Air-Line Ry., 138 Ga. 96, 74 S.E. 764 (1912).

Cited in Youngblood v. Comer, 97 Ga. 152, 23 S.E. 509 (1895); Barry v. McGhee, 100 Ga. 759, 28 S.E. 455 (1897); Charleston & W.C. Ry. v. Robinson, 11 Ga. App. 492, 75 S.E. 820 (1912); Lamb v. Floyd, 148 Ga. 357, 96 S.E. 877 (1918); Hancock v. Miller, 28 Ga. App. 387, 111 S.E. 80 (1922); Birmingham Trust & Sav. Co. v. Atlanta, B. & Atl. Ry., 287 F. 561 (N.D. Ga. 1923).

ALR.

- Forum non conveniens: circumstances justifying state court's refusal to take jurisdiction of Federal Employers' Liability Act proceeding, 60 A.L.R.3d 964.

Right of action arises upon employee's death.

- Right of action afforded by this article (see now O.C.G.A. Art. 3, Ch. 7, T. 34) to parents of a railroad employee for homicide of such employee does not arise until the death of the employee; consequently, the cause of action is not barred before expiration of two years from the death of the employee, even though more than two years may elapse between the time of injury which results in death and death itself. Dameron v. Southern Ry., 44 Ga. App. 444, 161 S.E. 641 (1931).

Settlement.

- Settlement by a person injured, prior to the person's death, of a right of action arising by reason of an injury will bar recovery for a subsequent death. Dameron v. Southern Ry., 44 Ga. App. 444, 161 S.E. 641 (1931).

ALR.

- Independent contractor: remedial rights in respect of injuries caused by breaches of positive duties correlative to corporate franchises, 28 A.L.R. 122.

ALR.

- Liability for injury to an employee as affected by expiration of statutory hours of labor before injury, 71 A.L.R. 861.

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 806 and former Code Section 34-8-1, which was repealed by Ga. L. 1991, p. 139, § 1, effective January 1, 1992, are included in the annotations for this Code section.

Scope of chapter.

- In determining whether an individual comes within the scope of Ga. L. 1937, p. 806 (see now O.C.G.A. Ch. 8, T. 34) it is first necessary to establish that the individual in question performs services for wages. Williamson v. Modern Homes Constr. Co., 114 Ga. App. 340, 151 S.E.2d 488 (1966) (decided under Ga. L. 1937, p. 806).

Construction and application.

- Courts, as well as the administrator of the unemployment law, in construing and applying the provisions of such law must liberally construe and apply such law in light of the public policy of this state. Dalton Brick & Tile Co. v. Huiet, 102 Ga. App. 221, 115 S.E.2d 748 (1960) (decided under Ga. L. 1937, p. 806).

Courts shall be guided by the fact that the unemployment compensation law is intended to provide some income for persons who are, without fault of their own, temporarily out of employment. Dalton Brick & Tile Co. v. Huiet, 102 Ga. App. 221, 115 S.E.2d 748 (1960) (decided under Ga. L. 1937, p. 806).

Substitute teacher's employment was intermittent by nature and not the type of employment that Georgia's Employment Security Law was designed to encourage; consequently, the teacher was not unemployed as defined by statute as a matter of law at the time that the teacher filed a claim for unemployment benefits, and the teacher's claim for benefits was properly denied. Campbell v. Poythress, 216 Ga. App. 834, 456 S.E.2d 110 (1995).

Rulemaking.

- Under the Administrative Procedure Act the adoption of "[r]ules relating to . . . benefits by the state or of an agency" is expressly exempted by O.C.G.A. § 50-13-2(6)(I) from the strict rulemaking procedural requirements of O.C.G.A. § 50-13-4. This includes the promulgation of policies determining eligibility for entitlement and rules for granting unemployment benefits. Caldwell v. Amoco Fabrics Co., 165 Ga. App. 674, 302 S.E.2d 596 (1983) (decided under former § 34-8-1).

Cited in Huiet v. Dayan, 194 Ga. 250, 21 S.E.2d 423 (1942); Johnson v. Huiet, 67 Ga. App. 638, 21 S.E.2d 437 (1942); Lee v. State, 73 Ga. App. 821, 38 S.E.2d 128 (1946); Banks v. Huiet, 111 Ga. App. 607, 142 S.E.2d 421 (1965); Caldwell v. Atlanta Bd. of Educ., 152 Ga. App. 291, 262 S.E.2d 573 (1979).

ALR.

- What constitutes appropriate relief for retaliatory discharge under § 11(c) of Occupational Safety and Health Act (OSHA) (29 U.S.C.S. § 660(c)), 134 A.L.R. Fed 629.

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under Ga. L. 1937, p. 806 and former Code Section 34-8-2, which was repealed by Ga. L. 1991, p. 139, § 1, effective January 1, 1992, are included in the annotations for this Code section.

Constitutionality.

- Fact that an employee is entitled to benefits based on employment at a hospital bears a substantial relationship to the purpose of this chapter. Compulsory contributions for employment security are, like many other taxes, payable without regard to fault; an employee's eligibility for benefits and the hospital authority's resulting liability do not offend the due process clause of Georgia's Constitution. Caldwell v. Hospital Auth., 248 Ga. 887, 287 S.E.2d 15 (1982) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

Purpose of chapter.

- Purpose of this chapter is to prevent economic insecurity due to unemployment by encouraging employers to provide more stable employment and to accumulate funds to provide benefits for periods of unemployment, and for this purpose it must be liberally construed and applied. Redwine v. Wilkes, 83 Ga. App. 645, 64 S.E.2d 101 (1951) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

The purpose of this chapter is to spread and lighten the burden of unemployment by allowing involuntarily unemployed workers to collect benefits based on their work history, even though that work history may encompass a period of employment which the employee voluntarily terminated. Furthermore, that this bears a substantial relationship to the purpose of the law seems clear beyond peradventure; it does in fact spread and lighten the employee's burden of involuntary unemployment. Caldwell v. Hospital Auth., 248 Ga. 887, 287 S.E.2d 15 (1982) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

Legislative intent.

- Legislative intent and purpose, that only the involuntarily unemployed whose unemployment is not the result of their own fault are entitled to compensation, is the foundation upon which the entire act rests; that intent and purpose runs irresistibly through every paragraph and sentence of the whole law and is supreme and controlling in the construction of all paragraphs and sentences. Ford Motor Co. v. Abercrombie, 207 Ga. 464, 62 S.E.2d 209 (1950) (decided under Ga. L. 1937, p. 806).

Chapter is to be liberally construed in favor of the state. Williams v. Tracy Bldrs., Inc., 94 Ga. App. 203, 94 S.E.2d 139 (1956) (decided under Ga. L. 1937, p. 806; see O.C.G.A. Ch. 8, T. 34).

The unmistakable legislative intent of the Employment Security Law is to pay unemployment compensation during periods of unemployment to those workers whose unemployment is involuntary and is not the result of their own fault. Caldwell v. Amoco Fabrics Co., 165 Ga. App. 674, 302 S.E.2d 596 (1983) (decided under Ga. L. 1937, p. 806).

"Through no fault of their own" construed.

- Phrase "through no fault of their own" as used in this section evidently refers to causes beyond "their" control. Huiet v. Schwob Mfg. Co., 196 Ga. 855, 27 S.E.2d 743 (1943) (decided under Ga. L. 1937, p. 806; see O.C.G.A. § 34-8-2).

Good faith effort construed.

- Denial of teacher unemployment compensation was reversed on appeal because the teacher's failure to pass an exam required as a condition of employment after taking the exam eight times was not due to any conscious neglect or deliberate malfeasance which would have justified disqualifying the teacher from receiving benefits. Johnson v. Butler, 323 Ga. App. 743, 748 S.E.2d 111 (2013).

No public policy exception.

- Trial court did not err in concluding that the job applicant's cause of action for fraud failed without considering whether the job applicant had an equitable claim for relief as an exception to the at-will employment doctrine because the stated purpose in enacting O.C.G.A. § 34-8-2 was to provide for the compulsory setting aside of unemployment reserves, not to create a public policy exception to the at-will employment doctrine. Poole v. In Home Health, LLC, 321 Ga. App. 674, 742 S.E.2d 492 (2013).

Cited in Union Dry Goods Co. v. Cook, 71 Ga. App. 708, 32 S.E.2d 190 (1944); Brumby v. Brooks, 234 Ga. 376, 216 S.E.2d 288 (1975); Phillips v. Caldwell, 144 Ga. App. 376, 241 S.E.2d 278 (1977); Caldwell v. Amoco Fabrics Co., 163 Ga. App. 74, 293 S.E.2d 57 (1982); Millen v. Caldwell, 253 Ga. 112, 317 S.E.2d 818 (1984); Department of Labor v. Baldwin County Hosp. Auth., 241 Ga. App. 119, 526 S.E.2d 153 (1999).

Editor's notes.

- In light of the similarity of the statutory provisions, opinions decided under Ga. L. 1937, p. 806, are included in the annotations for this Code section.

Purpose of chapter.

- The award of benefits to a "substitute" or part-time teacher during intervals between the teacher's periodic services solely by virtue of the teacher's being a substitute teacher would be contrary to the basic purpose of the law, which is to enhance stable employment and lighten the burden of involuntary unemployment. 1977 Op. Att'y Gen. No. 77-45.

Am. Jur. 2d.

- 76 Am. Jur. 2d, Unemployment Compensation, § 5.

C.J.S.

- 81 C.J.S., Social Security and Public Welfare, § 281 et seq.

ALR.

- Constitutionality of unemployment insurance legislation, 106 A.L.R. 1531.

Employment rights of domestic violence victims, 9 A.L.R.7th 7.

Am. Jur. 2d.

- 76 Am. Jur. 2d, Unemployment Compensation, §§ 14, 18, 19.

C.J.S.

- 81 C.J.S., Social Security and Public Welfare, § 366 et seq.

Am. Jur. 2d.

- 76 Am. Jur. 2d, Unemployment Compensation, §§ 13, 29.

C.J.S.

- 81 C.J.S., Social Security and Public Welfare, § 390 et seq.

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Code Section 34-8-34, which was repealed by Ga. L. 1991, p. 139, § 1, effective January 1, 1992, are included in the annotations for this Code section.

Full-time students.

- Claimant can be a full-time student and still be available for full-time continuous employment. Curry v. Tanner, 180 Ga. App. 21, 348 S.E.2d 465 (1986) (decided under former § 34-8-34).

Am. Jur. 2d.

- 76 Am. Jur. 2d, Unemployment Compensation, § 14 et seq.

C.J.S.

- 81 C.J.S., Social Security and Public Welfare, § 194.