52 Ga. App. 731 | Ga. Ct. App. | 1936
Lead Opinion
J. G. Kent brought suit against the Southern Railway Company and W. W. Waits. Error is assigned upon the order sustaining a general demurrer to the petition. It was alleged: On September 6, 1934, W. W. Waits was a conductor of the railway company, and brought a train consisting of an engine and three cars to a point about twenty feet from where the company’s side-track crossed Circle Street in the City of Atlanta and near where said side-track enters the property of the Exposition Cotton Mills. The plaintiff and about fifty other persons who worked at said mill were gathered along the intersection of Circle Street and the side-track, blocking the entrance of the train to the mills. Waits advised the plaintiff and the persons with him that it was necessary for him to place some of the cars of his train in the yard of' the mill and to take' other cars therefrom, and stated to the plaintiff and the others that they were blocking his train and were preventing him from discharging his company’s business, and re
From the allegations it may be seen that the plaintiff was not a mere negligent trespasser, but that he was a criminal trespasser. The Code of 1933, § 26-5301, declares: “Any two or more persons who shall assemble for the purpose of disturbing the public peace or committing any unlawful act, and shall not disperse on being commanded to do so by a judge, justice, sheriff, constable, coroner, or other peace officer, shall be guilty of a misdemeanor.” Section 9-1-9908 further declares: “Any person intruding unlawfully upon the constructed track of a railroad company, contrary to the will of the company, shall be guilty of a misdemeanor.” Section 26-7313 declares that the obstruction of, or counseling others to obstruct, a railroad shall be a misdemeanor. Section 26-7315 makes it criminal to interfere with the operation of any train or engine. The plaintiff was engaged, according to the allegations of his petition, in an active, wilful, deliberate violation of several penal statutes of this State. The conductor in charge of-the train, according to the allegations, had observed every requirement possible to induce' the plaintiff to desist from' his admitted criminal act, and the plaintiff wilfully and purposely con-
A distinction is and should be drawn between those cases where the trespass is active and continued after warning to desist, and those that are merely passive. One stealing a ride on a train is a criminal trespasser, and the only duty the company owes him is not to wilfully and wantonly injure him after his presence is discovered. When he is discovered and refuses to leave the train on being ordered so-to do, and resists by force, the use by the employees of possibly more force than is necessary under the circumstances, in order to put such trespasser off the train, is not negligence imputable to the company. The trespasser by such action puts himself in the position of creating a privilege for the actor to use bodily force without too many fine-drawn distinctions of reasonableness. Moreover, it is alleged that the plaintiff and fifty or more companions were purposely blocking the railroad-tracks where they crossed Circle Street in the City of Atlanta. This was a criminal act on a public street of the city, and was occurring in the presence of the chief of police. The prevention of crimes within the city and bn its streets is the chief duty of such an officer. His is the duty; his the responsibility. A person whose private rights are being violated by such criminal act does not, by counseling or commanding such officer how to act, make the officer his agent. In Bright v. Central of Ga. Ry. Co., 13 Ga. App. 364 (77 S. E. 372), it was held that the railroad company was not liable for an unlawful arrest by a special police officer paid by the railroad, and specially detailed to protect railroad property, when he was hired by and under the direction of the municipal authorities. In that case Judge Pottle said: “The mere fact that the company paid him did not give it a right' to control his conduct as a police officer. He was not bound by any instructions the company might give in reference to making or not making an arrest in a particular instance; and since the company could not have prevented him from arresting the plaintiff, it was not responsible for any. damage which resulted from the arrest.” It is the general rule, in the absence of statute, that a private person or corporation is not responsible for the acts of a special police officer appointed by the public authority, but employed and paid by the private person or corporation, when the acts complained
In the present case no special agency is shown between the Southern Railway Company and the chief of police of Atlanta. There existed in the defendant no right or power to control or direct the action of- the chief of police on the occasion in question. The chief of police was under an independent duty of his own, by virtue of his office, to take action in the premises. He was not an employee, speciál or otherwise, of the defendant. The defendant is alleged to have counseled and commanded him how to act. He was under no duty or obligation to accede to the counsel or command. He was obligated to take action himself in the performance of his. public duty. The fact that the action taken coincided with that advised and commanded by the defendant does not make such act the act of the defendant. It may have coincided with the intent already formed in the mind of the chief of police. It may have influenced the action of such officer, but it did not control him or take away from him the obligation to perform his independent duty, and under such circumstances make him the agent of the defendant, rather than chief of policé. The statement from the Bright case, supra, is especially pertinent. In Restatement of the Law of Agency, § 217 (2), it is said: “A master or other principal is not liable for acts of a servant or other agent which the agent is privileged to do, although the principal himself would not be so privileged. . . So, if a peace officer who is also a servant arrests one whom he honestly believes to be a felon, although no felony has been committed, and does this in the scope of his employment, the master is not liable for the
Judgment affirmed.
Dissenting Opinion
dissenting. The petition alleges that there were about fifty .persons on a strike, who were- picketing a cotton-mill, one of whom was the petitioner, that he and the other persons were standing on a side-track of a railroad company where it crossed a public street over which it was necessary for a train to run when placing cars on the side-track of said railroad leading to the cotton-mill; that the plaintiff and other pickets refused to move at the request of Waits, and were thereby blocking said track; and that Waits, an agent of the company who was in charge of one of its trains, and whose duty it was to run the train over the track at a point where the plaintiff, a trespasser, was blocking the passage thereof. Waits, the agent, would be acting within the scope of his authority if he removed the trespasser from the track in order for the train of which he was in charge to pass over said tracks; and the railroad company would not be liable for the removal of the trespasser if the agent did not use more force than was necessary. On the other hand, if Waits, the agent, while the plaintiffs were engaged in the trespass, in attempting to prevent the trespass or cause the plaintiff to desist, injured the plaintiff
An examination of the petition shows that the only act ascribed 'directly to either of the defendants is that Waits, the agent in charge of the train invoked the aid of Sturdivant, chief of police of the City of Atlanta, and directed him to shoot the plaintiff in order to remove the plaintiff, who was one of about fifty persons who were blocking a railroad side-track where it crossed a public street in the city. This act is significant only as a means of imputing the conduct of the chief of police to the defendant in this suit. The agent of a railroad company, acting within the scope of his authority, has a right forcefully to eject a trespasser who is blocking the railroad-track and preventing the delivery of cars' at their destination. If in ejecting such a trespasser more violence is used than is necessary for the purpose, the company and its agents are liable for damages resulting from such excess of violence. In Jardine v. Cornell, 50 N. J. L. 486, it was said: “A police officer who, in response to the invitation of the regular agent of the company, assists in ejecting a passenger becomes a special agent of the company for that purpose, and is subject to the same rule in regard to excessive violence in executing the regulation of the company.” See Bayley v. Manchester &c. Ry. Co., 7 Law Reports, Court of Common Pleas (35 Victoria) 415. If Sturdivant was acting purely in his capacity as a police officer, the railway company is not responsible for his acts. Only when the railway company through its authorized agent has employed or directed such police officer to act for it, does it become responsible.