Williams v. Rome Railway & Light Co.

4 Ga. App. 372 | Ga. Ct. App. | 1908

Russell, J.

The plaintiff in error excepts to the dismissal of her petition, on general demurrer. As to the facts alleged, the case is practically identical with the case of Williams v. Rome Ry. and Light Co., ante; and as to the law, this plaintiff’s case (like her husband’s) is controlled by the decision of this court in Glenn v. W. U. Tel. Co., 1 Ga. App. 821 (3), 831 (58 S. E. 83). According to the allegations of the plaintiff, she got on the' North Nome Car, to ride to Fifth avenue and transfer there to the West Nome ear. Her fare was paid by her husband, on the strength of the conductor’s promise to overtake the West Nome ear and transfer them to it. When she reached the point where she was to be transferred, the conductor, of the West Nome car refused to allow them to transfer, by starting his car and leaving her. It is alleged, that the conductor of the West Nome car had full knowledge of the fact that the plaintiff desired to be transferred, and that the conductor of the North Nome car had agreed that she should be transferred. The petition alleges a violation of duty and a breach of contract.

We think the court erred in dismissing the petition upon general demurrer. It is true that the plaintiff can only recover nominal damages, but the breach of duty arising from the contract authorizes the recovery of such nominal damages as will carry the costs. Glenn v. W. U. Tel. Co., supra.

It was held in Williamson v. Central Ry. Co., 127 Ga. 125 (56 S. E. 119), that the conductor of a train is the alter ego of the carrier in making contracts for passage between points on his run, and that when he allows a person to pay a cash fare to any particular point, “a valid contract immediately arises between the carrier and such person, by virtue of which such person becomes entitled" to be transported as a passenger to the station of the company at the place to which fare is paid.” It has also been held that for a train to fail to stop and take on passengers at a regular stopping-place, when it should stop, gives a right of action. See Ga. R. Co. v. McCurdy, 45 Ga. 288 (12 Am. R. 577); Western R. Co. v. Young, 51 Ga. 489, 492; Nunn v. Ga. R. Co., 71 Ga. 710, 712 (51 Am. R. 284); Philadelphia R. Co. v. Derby, 55 U. S. 468 (14 L. ed. 502). Under the ruling in the Williamson case supra, we hold that the conductor on the North Eome car had the authority to make an agreement that would bind the company, not only as to transportation on his car, but also upon any other car of the defendant company. It is true that the particular language used in the body of the opinion in the Williamson case is that the conductor has power to engage to transport a passenger to any point "on his route.” From this language, it is very ably argued by counsel for the defendant in error that the conductor on one street-car would not have the right to make the contract of carriage beyond the route traversed by his car; in other words, that the conductor on the North Rome car would have a right to make a contract to carry a passenger to any point on Ms route, by which the company would be bound, but that the company would not be bound by a contract made by Mm for the transportation of a passenger over any other route maintained by the company, nor be liable for the breach of any contract made by him for carriage on a route other than that traversed by his own car. We think differently. If a street-car conductor has the right to make a contract for the transportation of a passenger at all, it is the contract of the company itself, and not of the individual who acts in its behalf. A corporation can only act through its agents, and if a street-car conductor is authorized to issue transfer's, and does issue them in pursuance of an agreement to convey the passenger to a particular point, the company is bound to honor the transfer and to fulfil the undertaking of its agent. As to a street-railway company whose conductors are authorized to issue transfers, all the lines of the company are within the right of such conductors. Corporations select their own agents, and if by the negligence of any of these agents there results a breach of the contract of carriage, and, resultant therefrom, a breach of duty, it is but just that the carrier (by whose servants the contract was both made and breached), rather than the passenger, should suffer if injury results. The mere breach of the contract which involves the performance of a public duty entitles the plaintiff in this ease to nominal damages. Civil Code, §3801; Lilly v. Boyd, 72 Ga. 83 (1); Kenny v. Collier, 79 Ga. 743 (8 S. E. 58); Barrett v. Verdery, 93 Ga. 530 (21 S. E. 64); National Exchange Bank v. Sibley, 71 Ga. 727 (4). In the last case cited, the Supreme Court held, “There may be damage without injury, where there has been no violation of any right of the party complaining, or no breach of duty to him, but where there has been a breach of duty or violation of right as to him, the doctrine of damnum absque injuria does not apply. In such cases, if no actual damage is shown, nominal damages may be recovered.” We deem it unnecessary to make further citations, for we have several times already ruled as we now hold.

2. Under the allegations of the plaintiff’s petition, her recovery must be restricted to nominal damages. For tlie reasons set forth in the second headnote, any injury she may have suffered must be regarded as the result of her voluntary act, and can not be attributed to the company’s wrong. Judgment reversed.