Pounds v. Central of Georgia Railway Co.
83 S.E. 96
Ga.
1914
Check Treatment
Hill, J.

(Aftеr stating the foregoing facts.) This ease turns on the question, whether the policeman who shot and killed the husband of plaintiff was an officer of the City of Savannah, and was aсting as such in the discharge of his functions as policeman; or whether he was the servant of the railway company, and acting as such as to a private duty imposed on him by the order or rules of the company. If the policeman was acting as an officer of the city at the time of the homicide, the city would not be liable; for the rеason that the policeman was in the discharge of a governmental function, and in such case a recovery can not be had against the city. Cook v. Macon, 54 Ga. 468. No decision оf this court deals with the identical ‍‌‌​‌‌‌​‌​‌​​‌​‌​​​​​​​‌‌​​‌​​‌​‌​​​​‌‌​‌​‌​‌‌‌​‌‍question here presented for decision; but in Bright v. Central Railway Co., 12 Ga. App. 364 (77 S. E. 372), it *417was held that “A railway corporation is not responsible in damages for an unlawful arrest of а passenger, made by a police officer appointed by and subject to the direction of the municipal authorities, notwithstanding the officer was specially detailed to preserve order at the company’s depot and his salary was paid by it.” This ruling is directly in point. While the original petition contained some general аllegations to the effect that Fennell was in the employment of the railway company, it was later amended so as to show more accurately his status. This amendment alleged, in substance, as follows: Fenne]l was appointed a policeman under and by virtue of sections 472 and 473 of the City Code of Savannah. The defendant comрany’s connection with the employment was that it designated or nominated him for appointment, and at its request he was appointed as provided under the above-named sections, of thé City Code of Savannah. The headquarters of police for defendant are at the Ocean Steamship wharf, where there is a sergeant appointed as provided in the above sections. Fennell’s duty was chiefly about the Ocean Steamship wharves. ' On the date of the occurrence involved in the suit, thе defendant had brought a large excursion into Savannah, and Fennell was ordered by the sergeant in charge to go to the defendant’s depot and there preserve order and assist its officers, agents, and employees in preserving order and preventing disorder among the passengers coming in and going out on trains. Both Fennell and the sеrgeant were paid their salaries by the defendant.

Counsel argued the case as if the two sections of the municipal ordinances referred to by number had been set out in full in the petition. It is well settled that the courts can not take judicial cognizance of municipal ordinances. If it is sought to plead them as establishing the rights of the plaintiff, they should be set out in the petition, not merely referred to by number. Notwithstanding, under the established rule that the pleadings must be taken ‍‌‌​‌‌‌​‌​‌​​‌​‌​​​​​​​‌‌​​‌​​‌​‌​​​​‌‌​‌​‌​‌‌‌​‌‍most strongly against the .pleader, enough appears in this petition as amended to show that the sergeant and Fennell were both appointed as a part of the police force of Savannah under ordinances touching that subject. And from the amendment it appears that Fennell was ordered by the sergeant to go to the railroad depot for the purpose of assisting in keeping order and preventing disorder at a time when a large number of people would likely be there on *418account of an excursion. There is nothing in the allegations which shows that he was performing any private duty for the defendant. The question arises, was Fennell, the policeman, the agent of the city exclusively; or was he the agent of the company, with super-added police powers; or was he acting in a dual capacity? If a man is a policeman, and he has no dutiеs to discharge except police duties proper for the public,—if he is acting as a public policeman and nothing else,—the mere fact that the cоmpany pays for his services does not make him the agent of the railway company. The company may become liable for his torts by directing them, even though he be a public officer. Or, he may have the functions of a public official; and also certain things that he does for the company for its benefit, for the benefit of its property, or its trains,—for instance, to light up the station; or the company may have him to help the baggage-master. He may occupy a dual position of exerсising functions for the public and the company; in which ease, where he is in the discharge of duties for the company, and the tort is committed under such circumstances as not to justify it, the company is liable. But if he commits a tort merely as a police officer, the company would not be liable, unless it was done at the direction of the company. The mere fact that a railroad company pays for the services of a certain police officer, who does nothing but perform the duties оf a police officer proper, does not make the company liable. It .does not appear from the petition that the defendant company had control over, the policeman in any way. On the contrary, it is alleged that he was ordered to the depot by the sergeant, another policeman of thе city. The company h'ad no power, so far as appears, to employ, direct, or control the policeman. It does not appear that the policeman performed any services as a servant for the company, or had any duty to perform in guarding the company’s property. It is not alleged that this officer did anything but what a regular policeman does. He had no more duty to perform to the railroad company than he had to any citizen. It does not appear that in that which he did he was expressly or impliedly directed by the company, nor that he was attending to any business for the company at the time of the unfortunate homicide. It does not appear that the company sent him on the train and that he was attending to the company’s business when the altercation between him and the decеased commenced, or subsequently when it terminated in the *419death of plaintiff’s husband. Fennell was simply a policeman of the City of Savannah, going in the station and train where hе had a right in the discharge ‍‌‌​‌‌‌​‌​‌​​‌​‌​​​​​​​‌‌​​‌​​‌​‌​​​​‌‌​‌​‌​‌‌‌​‌‍of his duties to go, 'and became engaged in an altercation in no way connected with the company’s business, so far as the record discloses.

In McKain v. Baltimore &c. R. Co., 65 W. Va. 233 (64 S. E. 18, 23 L. R. A. (N. S.) 289, 131 Am. St. R. 964, 17 Ann. Cas. 634), it was held that “A special officer appointed and commissioned by the Governor at the instance of a railroad company, under the provisions оf § 31, chap. 145, Code 1899 (Code 1906, § 4281), and paid by such company for his services, is prima facie a public officer, for whose wrongful acts such company is not liable.” In delivering the well-considered opinion Poifenbarger, J., after citing quite a number of authorities, one of which held under the facts that a street-railway company was liable, sаid: “If, however, it does not appear that the act done was within the scope of the servant’s employment, or that there was any employment or contract of service beyond that by which the person or corporation at whose instance the appointment of the officer was made bound himself to pay the оfficer for his services as a policeman, or that the arrest was made or the person prosecuted at the instance or by the direction of the persоn who had the appointment made, there is no liability upon such person for the act.” In the note to this case in 23 L. R. A. (N. S.), it is said that the doctrine of the decision represеnts the great weight of authority on the question of the liability of an employer for the acts of a special policeman.

It does not appear from the allegations in the present ease that the policeman was employed, paid, ‍‌‌​‌‌‌​‌​‌​​‌​‌​​​​​​​‌‌​​‌​​‌​‌​​​​‌‌​‌​‌​‌‌‌​‌‍and subject to be discharged by the company, so as to be its employeе, within the ruling in Tabb v. Mallette, 120 Ga. 97 (47 S. E. 587, 102 Am. St. R. 78).

In view of what has been said and the authorities cited, we hold that the petition was properly dismissed on demurrer.

Judgment affirmed.

Evans, P. J., and Beck, J., dissent. Atkinson, ‍‌‌​‌‌‌​‌​‌​​‌​‌​​​​​​​‌‌​​‌​​‌​‌​​​​‌‌​‌​‌​‌‌‌​‌‍J., disqualified. The other Justices concur.