
    12955.
    Savannah River Lumber Co. v. Smith.
    Decided July 12, 1922.
    Action for damages; from city court of Savannah — Judge Freeman. September 16, 1921.
    
      William R. Sanderson, Hitch, Denmark & Lovett, Alvan D. Rowe, for plaintiff in error.
    
      Robert L. Colding, contra.
   Bloodworth, J.

1. "In an action in this State by a servant against bis master for an injury occurring in another State by reason of defective machinery furnished by the master, it will be presumed, unless the contrary be shown, that the common law prevails in such other State. The declaration in such case, brought under the common law, must allege, not only that the servant was ignorant of the defect, but also that he could not have discovered it by ordinary diligence, and that the master knew or ought to have known of it.” (Italics ours.) Charleston & Western Carolina Railway Co. v. Miller, 113 Ga. 15 (2) (38 S. E. 338).

2. An allegation in a petition that the plaintiff was free from fault can not serve as a substitute for a proper allegation of his want of knowledge of the defect or that he could not have discovered it by ordinary diligence. Allen v. Augusta Factory, 82 Ga. 76, 79 (8 S. E. 68).

3. Under the above rulings, the petition did not set out a cause of action, and the court erred in overruling the general demurrer.

■Judgment reversed.

Broyles, C. J., and Luke, J., concur.  