2 Ga. App. 499 | Ga. Ct. App. | 1907
Lead Opinion
Nathan F. Wolfe, the plaintiff, brought a suit for damages against the Georgia Railway & Electric Company. The defendant filed a general demurrer on the ground that no cause of action was alleged, and the court below sustained it. This, judgment is brought to this court for review; and the question, to be determined is,- does the plaintiff’s petition set out a cause of action? The plaintiff alleged, that on Monday night, June 27, 1904, he, accompanied by his sister, boarded a car of the defendant at the corner of Garnett and Whitehall streets for the purpose of being transported to a point on Highland avenue, reached by one of the lines of defendant; that he paid to the conductor on the car the fare charged for the transportation of himself and sister, and asked for and received transfers to the Houston street ear; that he was duly transferred to this car, which had two- long seats, one on each side of the car, with a broad aisle between; that he and his sister entered the car from the rear, and walked forward and took seats in the front part of the car;, that there is a regulation of the defendant company that white passengers will “seat from the front,” and negro passengers will “seat from the rear” of the car; that when he and his sister had seated themselves, the conductor of said car came to him and took up the transfers for himself and sister, and at the
The allegations in this case present to this court circumstances which have never heretofore been presented to the courts of this State, and in an extended search for authorities we have been unable to find a ruling by any court of last resort which deals with the main question involved in this case. The central point in this case, the pivot on which the decision must turn, is, whether it is insulting to publicly call a white man a negro. Two other questions, it is true, are presented in the record; but they are only incidental to the main question, which we have stated above. The two other issues relate to the liability of a carrier for insulting conduct towards its passengers on the part of its agents or servants, and involve a consideration of Penal Code, §527, as affecting the liability of the carrier for the acts of its servants while exercising police power. There are therefore three questions in the
We are not compelled to plant our decision on the ground of in equality or inferiority. We take judicial notice of an intrinsic difference between the two races. Certainly if a court can take judicial notice of near a thousand things, some even of slight Importance, which have been judicially recognized without proof, this court may be presumed to observe that there is a marked difference between a Caucasian and an African. Notice of this difference does not imply legal discrimination against either, and for that reason can not in any sense impugn or oppose the 14th and 15th amendments to the constitution of the United States or the constitution of our own State. Our constitution, article 1, section 1, paragraph 18, declares that the social status of the citizen shall never be the subject-matter of legislation. It has been said that this language was used for the express purpose of leaving the social status open to judicial determination. We, however, shall not take any such fanciful position; for it can
Taking into consideration, then, the difference in color, if nothing else, and bearing in mind that a little more than forty years ago the black race were slaves without civil standing or social or political rights, and keeping in view the further fact that a pure black man can not be mistaken for a white man, and the fact that intermarriage between the races has been continuously forbidden in this State, to charge a white man, even though of dark skin, with being a colored man, or a colored' man, even though of fair skin, with being a white man, is to impute the odium of illegitimacy. Under the decisions of this State it can not be questioned that to make such a charge (either directly, or by intimation easily understood by the bystanders) would be an aggravated insult; and if a servant, charged with the duty\of separating the passengers, heedlessty, even though unintentionally, without the exercise of the proper degree of diligence, made a mistake, the company would be liable for his omission of that proper care for the protection of the passenger for which the carrier is bound. Furthermore, the Penal Code, §528, makes any passenger remaining in any car or compartment or seat other than that to which he may have been assigned guilty of á misdemeanor; and where the assignment and seats are well known, to falsely charge a passenger with occupjdng a seat not assigned to his race is to charge him either with attempting to commit a misdemeanor or of being actually guilty thereof. In any view this would be actionable. If the difference in race, referred to by Chief Justice Brown in Scott v. State, 39 Ga. 323, exists, as it undeniably does, then to wrongfully, though unintentionally, accuse a white man of being of negro descent and of trying tq put himself in that portion of the car where by law he is forbidden, thus illegally causing mortification and pain, creates an injury for which the law allows reparation. The good faith of the conductor, his lack of intention to wound, may lessen and greatly mitigate the amount of the damages, but it can not altogether defeat a recovery; and
We can not shut our eyes to the fact that there is a universally recognized distinction between the races. The situation which confronts us in the present case is the relation occupied by three classes of people in this State: whites, blacks, and a mixed breed resulting from unlawful relations between the two. The charge made by the conduct of the street-car conductor can not be construed as being that plaintiff was a full-blooded negro, but that he had enough negro blood to be classified with that race, or else that he was a white man degraded (as the conductor himself assumed) by having associated with negroes, or that, having negro blood in his veins, he was attempting to violate ,the law by putting himself in that portion of the car assigned to whites. In Bryan v. Walton, supra, Chief Justice Lumpkin says, on page 202: “Our ancestors settled this State when a province, as a community of white men . . possessing an equality of rights and privileges. The blacks were introduced into it, as a race of Pagan slaves. The prejudice, if it can be called so, of caste is unconquerable. It was so at the beginning. It has come down to our day. The suspicion of taint, even, sinks the subject of it below the common level.” And on page 205 he says, “In no part of this country, whether North or South, East or West, does the free negro stand erect and on a platform of equality with the white man.” In Flood v. News & Courier Co., 50 S. E. 637, the Supreme Court of South Carolina held that to publish in a newspaper of a white man that he is colored is libelous per se, and cited numerous authorities to sustain its position. To the same effect was the decision of the Supreme Court of Louisiana, in Upton v. Times Democrat Pub. Co., 28 So. 970; and in Southern Ry. Co. v. Thurman, 90 S. W. 240, the Court of Appeals of Kentucky held that a cause of action was set out. If, as we hold, to call a white man a negro or to intimate that he is of African descent may be an insult (and we think that, under the circumstances detailed in plaintiff’s petition, the jury might consider it insulting for any
Concurrence Opinion
concurring. As stated in the third headnote, we think (while Judge Russell does not) that if the conductor, in the exercise of his duties in the dual capacity of police officer and agent of the company in attempting to enforce §527 of the Penal Code, uses extraordinary diligence, that is to say, extreme care and caution, to prevent mistaking a white man for a negro or vice versa, and such a mistake nevertheless results, the carrier would not be liable. We concede that in. taking this position we are somewhat at variance with whát was said by the Supreme Court in the second division of the opinion in the case of Seaboard Air-Line Railway v. O’Quin, 124 Ga. 359, where a charge substantially embodying this proposition in a case standing upon a somewhat similar basis was disapproved. Still it will be seen that so much of the decision as asserts that this charge was error was obiter, since the court held that such a charge was more favorable to the complaining party than otherwise, and that