328 F2d 307 Fleming v. Sedgewick

328 F.2d 307

Mrs. Harvey A. FLEMING, Appellant,
Mrs. Elizabeth Wade SEDGEWICK et al., Appellees.

No. 20636.

United States Court of Appeals Fifth Circuit.

Feb. 17, 1964.

Frank T. Holt, Thomasville, Ga., Alexander, Vann & Lilly, Thomasville, Ga., of counsel, for appellant.

Richard D. Carr, H. A. Stephens, Jr., Atlanta, Ga., for appellees; Smith, Field, Ringel, Martin & Carr, Atlanta, Ga., of counsel.

Before CAMERON, WISDOM, and GEWIN, Circuit Judges.


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In this case the body of the plaintiff's husband was found on an isolated country road near Thomasville, Georgia. For two years, as part of his duties, the decedent had carried his employer's payroll over that road from a bank in Thomasville to the Millpond Plantation. The plaintiff sued the employer on the theory that the employer should have anticipated the risk of a hold-up and murder. The district court dismissed the complaint, holding that, under the law of Georgia, a master is not liable to injuries to his servant caused by the acts of third persons over whom he has no control. The appellees contend that this rule applies with special force when the act of the third person is a criminal act.


If this Court were not bound by Erie Railroad Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, we might hold that it is a jury question whether the employer exercised due care in regard to a foreseeable risk, and that risk of injury from a third person may be a foreseeable one against which the employee should be guarded. A careful study of the Georgia authorities, however, supports the appellees' position. Andrews and Company v. Kinsel, 114 Ga. 390, 40 S.E. 300; Bowers v. Southern Railway Company, 10 Ga.App. 367, 73 S.E. 677; Ficken v. Southern Cotton Oil Company, 40 Ga.App. 841, 151 S.E. 688; Lowry v. Atlanta Joint Terminals,145 Ga. 782, 89 S.E. 832. See also Georgia Code, Section 66-303; Van Dyke v. Menlo Fruit Company, 129 Ga. 532, 59 S.E. 215; Kilgo v. Rome Soil Pipe Manufacturing Co., 16 Ga.App. 737, 86 S.E. 82.


The judgment is affirmed.