Opinion
43306.
ARGUED JANUARY 10, 1968.
DECIDED JANUARY 29, 1968.
Action for damages. Grady Superior Court. Before Judge Culpepper.
Alexander, Vann Lilly, Roy M. Lilly, for appellant.
Marcus B. Calhoun, Frank L. Forester, for appellee.
Where a distinct issue is presented in the pleadings, it is proper for the trial judge to instruct the jury on the law relating thereto, provided the charge is supported by some evidence, even though very slight.
ARGUED JANUARY 10, 1968 — DECIDED JANUARY 29, 1968.
Roger Wendell Lacy brought a suit against Dr. John A. Ferrence. The petition alleged in part: that the plaintiff and his father were partners in a small sawmill and logging business; that the defendant engaged the plaintiff and his father to haul logs from his property to their mill to be sawed into pine boards and returned; that their arrangement was that the defendant's employees were to cut and load the logs on the truck; that the plaintiff was injured because of the negligence of one of the defendant's employees.
The defendant filed an answer in which the major portion of the petition were denied and for further answer alleged in part: that at the time of his injuries the plaintiff was an employee of the defendant; that the injuries sustained by the plaintiff were caused by a fellow employee.
The case proceeded to trial and the jury returned a verdict for the defendant. The plaintiff appealed, and the case is here for review.
The only question for determination is whether the trial judge erred in instructing the jury as to the fellow servant doctrine. This doctrine is embodied in Code § 66-304: "Except in case of railroad companies, the master shall not be liable to one servant for injuries arising from the negligence or misconduct of other servants about the same business."
The evidence was in conflict as to whether the plaintiff was in fact an employee of the defendant. The plaintiff testified that he was not employed by the defendant and that his father paid him approximately $50 per week for his services; that he had done some work for the defendant prior to the time he was injured; that the work consisted of hauling pulpwood and hauling logs to his father's mill. While the defendant's testimony was vague as to whether the plaintiff was his employee at the time in question, there was in evidence a check for $10 which was drawn on the defendant's account and made payable to the plaintiff. The check was dated April 24, 1962, which was only one week prior to the date the plaintiff received his injuries. There was a notation on the exhibit that it was paid to the plaintiff for "hauling logs." This evidence, though slight, was sufficient to authorize a jury inference that the plaintiff was an employee of the defendant at the time he received the injuries. "The evidence to authorize a jury instruction need not be substantial or direct; it is enough if there is even slight evidence consisting of inferences drawn from the testimony. Harper v. Hall, 76 Ga. App. 441 (2) ( 46 S.E.2d 201); Bowie Martin, Inc. v. Dews, 73 Ga. App. 73 (1) ( 35 S.E.2d 577). This is true even though the great preponderance of evidence tends to show that a supposed state of facts does not exist. Hawkins v. State, 80 Ga. App. 496 (2) ( 56 S.E.2d 315)." Housing Authority of Atlanta v. Troncalli, 111 Ga. App. 515, 517 ( 142 S.E.2d 93).
Thus, the trial judge did not err in giving the charge to which the appellant objects.
Judgment affirmed. Bell, P. J., and Hall, J., concur.