135 Ga. 741 | Ga. | 1911
Mason brought suit against the Nashville, Chattanooga & St. Louis Railway' Company to recover damages on account of an alleged assault by the conductor of the defendant. The defendant contended that the plaintiff was drunk and disorderly, used foul and abusive language to the conductor, and brought on the difficulty, and that the conductor was justified in what he did, or, at least, that the company was not liable. The jury found for the defendant. The plaintiff moved for a new trial, which was refused, and he excepted.
1. What purported to be a certified transcript from the docket of the mayor’s court of Bridgeport, Alabama, certified by a person signing himself “Clerk Mayor’s Court of Bridgeport,” with no seal attached, and not certified as provided by the acts of Congress, adopted into our code, was admitted in evidence over objection. The presiding judge, in admitting it, said: “As the certificate shows that he appeared and pleaded guilty, let it go in so far as it may show an admission that he was intoxicated on' that day. Let it go in for that purpose.” The certificate was not such as to render the purported transcript admissible in evidence. Civil Code (1895), §§ 5237, 5238 (Civil Code (1910), §§-5824, 5827). Nor do we see how an inadmissible certificate became legal evidence because
2, The court charged as follows: “Now, gentlemen, I will state in the outset that the plaintiff had the right to bring his suit in this county or in any other county where the defendant company had an office or agent; but the fact that he brought it away from his home, and among strangers, is a circumstance you may consider in so far as it may throw light or tend to throw light upon the alleged transaction.” If the plaintiff had a legal right to bring suit in Georgia, this charge brought into the case a new issue, — his motive or reason for so doing. If this were an issue for the jury, the plaintiff and defendant could introduce evidence in regard to it, and a collateral question would be injected into the main trial. Suppose he had been asked why he had brought the suit in this State, and had replied that the rules of practice or evidence in Georgia were more favorable to such suits than those of Alabama, would it have been competent to enter into a trial of the relative effect of the rules of practice or evidence of the two States on the subject of damage suits ? Or suppose he had answered that the presiding judge of the circuit in Alabama where the suit could be brought was his personal enemy, could evidence pro and con as to the truth of this statement have been introduced, and could a trial of the qualification of a foreign judge have been superimposed upon the trial of the claim for damages ? Where would be the limit of the examination, if the motive or reason of a plaintiff in selecting a certain jurisdiction, where he had a right to sue, could be made an issue in the case ?
The fact that counsel on both sides had commented on the location of the suit, and that the plaintiff’s counsel orally requested a charge .that the plaintiff had the right to bring it in the county where it was brought, did not authorize an additional charge that his bringing it away from home and. among strangers was a circumstance which the jury might consider, “in so far as it may throw light, or tend to throw light, on the alleged transaction.” The “alleged transaction” was an assault by a conductor on a passenger.
3. ' The court further charged: “I charge you that carriers must treat their passengers respectfully, and protect them, so far as they reasonably can, from injury or insult on the part of their employees.” “A carrier of passengers is bound also to extraordinary diligence on behalf of himself and his agents to protect the lives and persons of his passengers.” (Italics ours.) Civil Code (1895), § 2266 (Civil Code (1910), § 2714). This duty is due from the carrier not only on behalf of himself, but on behalf of his agents to whom he entrusts its discharge. The charge quoted was erroneous.
4. A consideration of the charges of which complaint was made on the subject of the provocation by the plaintiff of the difficulty with the conductor will show that they were in some respects, inaptly worded. But aside from any question of inaccuracy in expression on the part of the presiding judge, this court has said that if a passenger on a railway train, by assault upon the conductor, or by abusive language, or the like, provokes a difficulty and unfits the conductor for the performance of his duties as such, and the latter commits an assault and battery upon him, the company is not liable, although the battery 'may not be entirely justifiable, or may be excessive in its character. In some instances even a broader mode of expression has been employed. See Peavy v. Georgia Railroad & Banking Co., 81 Ga. 485;, Georgia Railroad & Banking Co. v. Richmond, 98 Ga. 495; City Electric Railway Co. v. Shropshire, 101 Ga. 33; Georgia Railroad & Banking Co. v. Hopkins, 108 Ga. 324: Central of Georgia Railway Co. v. Motes, 117 Ga. 923; Dannenberg v. Berkner, 118 Ga. 885, 889; Macon Railway & Light Co. v. Mason, 123 Ga. 773, 776. Permission was given to review the decisions in these eases, so far as necessary, on the point now under consideration. We will- consider what such cases respectively decided: then whether the rulings actually made were sound and shpuld be allowed to stand or not, so far as they seek to lay down a rule of law
At the outset it is well to remember that in dealing with the general question of whether a master is liable for a willful tort of his servant, the doctrine of respondeat superior furnishes the basis for decision, if there are no statutory provisions on the subject, but that, in certain instances, there is a relation between the master and the injured person, out of which arises a duty of protection; and this duty is to be considered in addition to the general doctrine mentioned above. This is true as to a carrier and its passengers. The carrier owes to its passengers a duty of protection even against outsiders. A fortiori it must protect its passengers against its own employees engaged in the performance of its contract of carriage,, and for whose acts in so doing it is responsible. Under the Civil Code (1910), § 2714 (Civil Code (1895), § 2266), a carrier is bound not only for extraordinary diligence on his part or “behalf,” but also on the part of his agents, for the protection of his passengers. A failure to bear this in mind has caused some confusion and lack of harmony in decisions.
Let us see what was actually decided in the cases under review, and what was the basis on which they rested. In Peavy v. Georgia Railroad and Banking Company, 81 Ca. 485, there was strong evidence tending to show these facts: A drunken passenger, armed with a pistol, was using profane language while standing on the platform of a car forming part of a passenger-train. The conductor approached him, and either took him by the collar or touched him on the shoulder, and admonished him not to'swear. After some conversation, the plaintiff went into the car and took a seat. When the conductor came to take up tickets, the conversation was renewed, the passenger again cursing and using obscene language. He was profane and disorderly; and upon the conductor’s trying to put him off the train, he drew a pistol. He had already made a threat as to what he would do if the latter sought to eject him. The conductor borrowed a pistol from a sheriff who happened to be a passenger, forced the passenger to lower his hand, backed him off the train, and then shook the pistol in his face and told him that if he got on the
In Georgia Railroad and Banking Company v. Richmond, 98 Ga. 495, a person purchased a railroad ticket, intending to take a train about to arrive, but failed to do so because he did not succeed in getting his baggage checked in time. He left the premises of the railroad company and registered at a hotel, intending to take a train for his destination the next morning. Afterward on the same day he returned to the station to make inquiries about, or arrange for the
In City Electric Railway Co. v. Shropshire, 101 Ga. 33, there was evidence tending to show these facts: The plaintiff was not a passenger, but stopped an electric car and entered it in order to look for a bundle which he said belonged to his sister. He delayed the car, refused to get off, after it started caused it to stop again, and again refused to leave it, when the conductor informed him that the car was behind time and that he could not “fool away” time with him. He replied by cursing the conductor and inviting the latter to put him off. When the conductor took hold of his arm, he struck the .conductor in the breast and started to jump off, and while in the act of doing so, ti^e conductor kicked him. As the car moved off he was hunting for rocks. The judge charged the jury, that “if the plaintiff brought about a difficulty, and a difficulty was had, and he brought it about by his own fault, and the defendant went too far and did more than it was authorized to do in ejecting him, in considering what amount of damage yon would give, you would be authorized to diminish the amount of the damages proportionate to the fault of the plaintiff in bringing about the result that came upon him.” It was held that this instruction cut the jury off from considering the evidence above mentioned for any other purpose
In Georgia Railroad & Banking Co. v. Hopkins, 108 Ga. 324, in an action for an assault and battery bjr a night watchman of the company in charge of its station, the defense was that the plaintiff
In Central of Georgia Ry. Co. v. Motes, 117 Ga. 923, a person who had been left by a railway train insisted on lying down and sleeping on the benches in the waiting-roont, and, in spite of warnings from the company’s servant in charge of the room that this was against the rule and could not be permitted, persisted in his conduct. Finally the official caught hold of him by the coat and pulled him from the position in which he was. The plaintiff contended that he was pulled out of his seat, and a button was broken off his coat, and that a threat was made to have him locked up. According to the evidence for the defendant, the company’s servant caught hold of the plaintiff merely to pull him into a sitting position. It
In Dannenberg v. Berkner, 118 Ga. 885, 889, it was merely said: ■“Nor was he [the court] bound to charge the principle laid down in Peavy v. Ga. R. Co., 81 Ga. 485, the same not having been requested in writing,” which does not seem to accord with statements in other eases supra, if the facts authorized the charge.
In Macon Railway and Light Company v. Mason, 123 Ga. 773, the question was whether a charge on the subject of punitive damages was authorized. A conductor of an electric'car, in putting on the brake, struck a passenger who was standing on the platform of a “trailer.” It was stated in the opinion that there was no dispute ■that this was unintentional, but there was a difference as to whether it was negligently done. The plaintiff demanded of the conductor what he meant by treating a gentleman that way; and the conductor responded that the passenger had no business standing there. 'The ruling was that this presented no case for a charge on the subject of punitive damages. In the course of the opinion it was said: “A conductor has been judicially recognized as human. . . And this court is committed to the doctrine that if a passenger is himself responsible for exciting the anger of an agent or employee of a railway company, whereby he is for the time being unfitted for performing the exacting duties he owes to Ms employer with respect to Ms treatment of passengers, the company can not be held account.able for improper conduct on the part of its servant.” This was
These are the cases under review. It will be perceived that from certain expressions used in the Peavy case, carried by other cases into the domain of substantive propositions of law suitable -to be given in charge, and aided by1 obiter dicta, has grown the present theory that if a passenger excites the anger of the servant of a railroad company even of a conductor to whom is entrusted the company’s duty of protecting him, whereby the conductor is for the time being unfitted for the performance of his duties, though the conductor unjustifiably assaults him, the company can not be held liable.
Of course, if the conduct of the servant of the railroad was justifiable, neither the servant nor the master would be liable. But a rule which would free the carrier from liability, although holding its servant to whom it entrusted the performance of its contract of carriage not justifiable, presents, we think, an untenable doctrine. What shall be the legal test of the sufficiency of conduct on the part of the passenger to put a conductor “out of tune,” or disqualify him by reason of anger from performing his duty, but not justify his action? Shall it be based on some theoretical average conductor; and if so, shall we look to the average sensitiveness of conductors throughout the country, or only on a particular road? Or shall the question be determinable by the sensitive disposition and inflammable temperament of the particular conductor whose act is; under consideration, and his condition at the time of the occurrence? Is it meant that a passenger must be entirely free from fairlt in order to hold a carrier liable for an assault and battery committed by its conductor? Or that imperfection of temper on the part of the conductor, if annoyed or aggravated by a passenger, will free the carrier from responsibility; and that the passenger alone is -held to a rule of perfection in conduct, manner, and speech ?
Let us now consider the statutes of this State and some of the decisions rendered before and after those above mentioned. By the-Civil Code (1895), § 3817 (Civil Code (1910), § 4413), it is declared that “Every person shall be liable for torts committed by his- . . servant by his command, or in the prosecution and within the scope of his business, whether the same be by negligence or volun
In Gasway v. Atlanta and West Point R. Co., 58 Ga. 216 (decided before the Peavy case in 81 Ga.), it was ruled that “Kailroad companies are responsible to passengers for the torts of the conductors and other servants of the company employed in running
In Western & Atlantic R. Co. v. Turner, 72 Ga. 292 (53 Am. R. 842), where a person entered a cab of a freight-train and sought to take passage, which was refused, and a battery was committed by the conductor, it was held that it was the conductor’s duty to refuse the passage in a polite manner and give the plaintiff a reasonable opportunity to quit the cab, and, if he still refused to leave it, then to use such reasonable force as was necessary to eject him therefrom. It was said: “Whatever the conductor did in relation to either of these matters was, under the facts of this ease, -clearly done in the prosecution and within the scope of his business, and the company was liable for'his conduct, even though it was voluntary.” It was also held that the section of the code (Civil Code (1910), § 3603), which states that “the principal is not liable for the willful trespass of Ms agent, unless done by his command or assented to by him,” must be construed in harmony with the section (Civil Code (1910), § 4413) which makes every person liable for torts committed by Ms servant, by his command, or in the prosecution and within the scope of Ms business, so as to allow both to remain of force in the cases to which they apply.
In Christian v. Columbus & Rome Ry. Co., 79 Ga. 460 (7 S. E. 216), a widow brought suit for the homicide of her husband, alleging that, while in the office of the defendant’s agent for .the trans
In Thompson v. Wright, 109 Ga. 466, 469 (34 S. E. 560), the following was quoted approvingly from Cooley on Torts: “The master who puts the servant in a place of trust or responsibility, or commits to him the management of his business, or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by circumstances and the occasion, goes beyond the strict line of his duty or authority, and inflicts an unjustifiable injury upon another.”- In Central of Georgia Ry. Co. v. Brown, 113 Ga. 414 (38 S. E. 989, 84 A. S. R. 250), it was held that “A master is liable for the willful torts of his servant, committed in the course of the servant’s employment,- just as though the master had himself committed them'. This rule applies as well where the master is a corporation as where he is a private individual.” In the opinion Chief Justice Simmons said: “The theory • that one may be a servant one minute, and, the very next minute, get angry, commit an assault, and in that act be not a servant, was too refined, a distinction.” It was also held that a master and servant might be jointly sued in trespass for a willful tort committed by the servant within the scope of his employment. Now suppose that, in the cases under review, the master and servant had been jointly sued in trespass for a battery committed by the servant, how could it be said,, consistently with the decision last quoted, that the jury should find that there was an unlawful battery, or a use of such excessive force as amounted to a battery, that this was a tort of the agent for which he was liable, but that the master
In some jurisdictions opprobrious words will not justify a battery. In this State, on the trial of an indictment for an assault, or an assault and battery, the defendant may give in evidence to the jury any opprobrious words, or abusive language, used by the prosecutor, or person assaulted or beaten, “and such words and language may or may not amount to a justification, according to the nature and extent of the battery, all of which will be determined by the jury.” If the jury find that the opprobrious words of the passenger, or act by him amounting to an assault, would justify the servant, his conduct, so justified, would not furnish a ground for recovery against the master. But the rule .works both ways. If the servant represents the master in his act, and the master is responsible for his tort, aggravation of the servant which will not justify him will not free, the master from liability. Acts which may not amount to a justification may yet amount to a mitigation, and, if the mitigating circumstances be strong, or the injury small, may furnish a basis only for recovery of nominal damages. Civil Code (1895), §§ 3905, 3892, Civil Code (1910), §§ 4502, 4489. It would seem that provocation given by a passenger at a different time could not be considered. East Tenn., Va. & Ga. Ry. Co. v. Fleetwood, 90 Ga. 23 (3), supra. In some jurisdictions it is held that words of provocation, not justifying, can only be considered to mitigate punitive damages. But in this State, where words may excuse entirely, they should be allowed to excuse in part, that is mitigate. Thompson v. Shelverton, 131 Ga. 714 (63 S. E. 220).
The test of whether the employee was justified was recognized
It will appear from what has been said that the decisions reviewed on the subject now under consideration are in conflict with earlier as well as later decisions of this court, and are not in harmony with the 'statute law or sound, legal reason. They are therefore modified so as to accord with the rule herein enunciated.
We are aware that in Harrison v. Fink, 42 Fed. 787, the United States Gircuit court upheld the direction of a verdict for a defendant railway company, and quoted at some length from the Peavy case. This, however, had reference to -the facts of the particular case, and whether they would authorize a finding for the plaintiff. ,
This opinion has already reached a length which precludes a full discussion of the views of text-writers and of courts in other jurisdictions. It is sufficient to say that they are not in perfect harmony. Among the cases which hold that abusive language, not justifying an assault by the conductor, will not free the company from liability, are Birmingham Ry. etc. Co. v. Mullen, 138 Ala. 614; Birmingham Ry. etc. Co. v. Baird, 130 Ala. 350 (30 So. 456, 54 L. R. A. 752, 89 Am. St. R. 43); Weber v. Brooklyn etc. R. Co., 62 N. Y. Supp. 1; Hanson v. European etc. R. Co., 62 Me. 84 (16 Am. R. 404); Hanan v. Omaha R. Co., 35 Neb. 74; Chicago etc. R. Co. v. Flexman, 103 Ill. 456 (42 Am. R. 33); Baltimore etc. R. Co. v. Barger, 80 Md. 23 (26 L. R. A. 220, 45 Am. St. R. 319); St. Louis Southwestern Ry. Co. v. Jones, 64 Ark. 613 (39 L. R. A. 785). In the States where it has been held that abusive language, though not justifying the conductor, will relieve the company, it will usually be found that the theory prevails that a willful tort by a conductor is, ipso facto, outside the scope of his employment — a doctrine which has been distinctly repudiated by this court in cases heretofore cited. The only case outside of Georgia, cited by counsel to sustain this doctrine, was that of Scott v. Central Park etc. R. Co., 53 Hun (N. Y.), 414, where it was said: “That while it might be true that the use of abusive language to the driver [of a streetcar] did not justify the assault, so far as the driver was concerned, in the eyes of the criminal law, there was no reason for holding
In 4 Elliott on Railroads, § 1-638, it is said: “A carrier is bound to discharge the implied duty, arising out of its contract and imposed by law, that its passengers shall be protected from injury by its servants and shall not be willfully insulted and harmed by them; and if it commits the discharge of this duty to an employee, it may well be held to do so at its peril, notwithstanding the exercise of care on its part in selecting its servants. Either the company or the passenger must take the risk of infirmities of temper, maliciousness, and the misconduct of the employees whom the company has placed upon the train and to whom it has committed the discharge of its duty to protect and look after the sáfety of passengers.”
It is not to be understood that this court approves of such conduct as the evidence for the defendant tended to show that the plaintiff was guilty of, but which he in part denied, though he admitted drinking about six glasses of beer shortly before entering the train, and going out and standing on the step of the ear, where he had no business to be. Without passing on the facts of the pres.ent case, we may say generally that we would lend no countenance-to drunken rowdies going upon railroad trains, using foul and profane language, sometimes in the presence of women and children,, seeking to terrorize or pick quarrels with the, passengers or railroad employees, and then, when they bring trouble upon themselves, or are ejected from the train, asking juries to award them large damages against the company as salve for their besotted but wounded feelings. In this State conductors in charge of trains are clothed with police powers, and on proper occasions must use them,- though
Judgment reversed.