Williamson v. Central of Georgia Railway Co. , 127 Ga. 125 ( 1906 )

Atkinson, J.

1. The Civil Code, § 3029, provides that “a principal is bound for the care, diligence, and fidelity of his agent in his business; and hence he is bound for the neglect and fraud of his agent in the transaction of such business.” In the case of Western R. Co. v. Young, 51 Ga. 489, this court ruled: “If the conductor of a railroad train agreed To put a passenger off at a particular place which is not a station or regular stopping place, it would be The duty of the conductor to stop the train at that place, so that the passenger could get off in safety.” In that decision the conductor is treated as the alter ego of the company with reference to making the contract for transportation then under consideration; and his right to make a contract binding the ’company to put the passenger off at a place other than a station is recognized and ruled. In the opinion, page 492, after'stating the rule as aboye quoted, the court says further: “It can not affect the rule that the passenger had a ticket only to the station last passed before reaching the place at which he was to be put off. The conductor had the power-to demand and receive any additional fare accruing for carrying a passenger to a point beyond the station to which his ticket entitled him to be carried.” In support of the conclusion last quoted, Judge Trippe cited Ga. R. Co. v. McCurdy, 45 Ga. 288, wherein it was said: “If he were to take fare for four miles, he. would be bound to put his passenger off there.” In McCurdy’s case the ruling of the court was put, among others, upon Philadelphia R. Co. v. Derby, 14 How. (55 U. S.) 468, wherein it is said: “A master is liable for the tortious acts of his servant when done in the course of his employment, although they may be done in disobedience of the master’s orders.” Applying what has been said to the case at bar, it is manifest, that with reference to the conduct of the conductor, of which complaint is made, the conductor was the alter ego of the defendant. He was placed in charge of the train for the purpose of carrying passengers, between distant points, and given authority, among others, to collect cash fares from passengers. Under such conditions when a cash fare would be collected, there immediately arose a contract between the .passenger and the carrier acting through its agent, the conductor, by which the passenger would be entitled to transportation on the defendant’s train to the point to which the fare was paid. In the negotiation just described the passenger represents himself and the conductor represents the carrier, and consequently both parties to the contract are represented, and upon the payment of the fare the defendant is bound to execute the contract by carrying the passenger to the place agreed upon. Under the decisions hereinbefore cited, the conductor has power to engage to transport a passenger to any point on his route.

2. From the reasoning in the preceding paragraph we have seen that the conductor acted within the scope of his authority when he entered into the contract of carriage to transport the plaintiff from the point at which she boarded the train to the point where he agreed to let her off. In this case we need not be confused by reason of the allegation that fare was paid to the city of Eome under an agreement to let tlie plaintiff off at the Eome & Decatur crossing, an intermediate point. Under that allegation the plaintiff at least was a passenger until the train reached the intermediate point, the Eome & Decatur crossing. The point at which she was put off was intermediate and before reaching either the Eome & Decatur crossing or the city of Eome. It follows that at the time the plaintiff was put off she was a passenger on the defendant’s train, 'and that the defendant owed her every duty which the law exacts of railroad carriers of passengers. The Civil Code, § 2266, provides: “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. But he is not liable for injuries to the person after having used such diligence.” It being without dispute that the plaintiff was a passenger, the case resolves itself down to the proposition as to whether or not the conductor exercised extraordinary care and diligence for the protection of life and pers'on of the plaintiff. The Civil Code, § 2899, declares extraordinary diligence to be “that extreme care and caution which very prudent and thoughtful persons use in securing and preserving their own property.” The circumstances under which the plaintiff was- put off the train were as follows: Upon boarding the defendant’s train, the plaintiff paid to the conductor a cash fare to the city of Eome, but stipulated with the conductor that she should be put off at an intermediate point known as the Eome, & Decatur crossing, where the company frequently received and discharged passengers. The declaration alleges that it was in the nighttime, and that the plaintiff was a stranger and could not for herself tell whether she was being put off at the place requested or not; that 'after going some distance the train stopped, and the conductor, knowing that the train was not at the crossing at which she had requested to get off, came to the plaintiff and represented to her that the train had stopped at the crossing where she desired to leave the train, and assisted her off on to the railroad track, leaving her in the dark, burdened with the care of children and bundles and at a place remote from residences or other places to which she could resort for safety. The plaintiff declares the act of putting her off under these conditions to be gross and wilful negligence. These allegations are to be taken as true on demurrer, and we are not prepared to hold as a matter of law that the conductor on this occasion, by his conduct just referred to, exercised towards this defendant that “extreme care and caution which very prudent and thoughtful persons use in securing and preserving their own property.” This conduct of the conductor related to the very business for which he was employed. In view of the agreement to let the plaintiff off at the Borne & Decatur crossing, the carrier could not have been at fault for letting her off at that point. But conceding that, still it does not follow that he was justified in putting this plaintiff down on the railroad track at the particular place, at the time and under the conditions described in the declaration. His duty of extraordinary diligence to his passenger, under the contract alleged, was to let her off at the place agreed upon. He may not have been obliged to agree to let her off at the intermediate point; but having done so and having undertaken to let her off at the intermediate point, it was at least his duty to give her correct information as to where she was being put off, and certainly it was a violation of that duty to misinform her either wilfully or negligently in respect to the place at which she was being induced to leave the car.

3. From what has been said, it is clear that the defendant is liable to the plaintiff for all elements of damages which legitimately flow from the tort. For the mere invasion of the right, nominal damages, if nothing more, should be allowed. See, in this connection, Broughton v. Winn, 60 Ga. 486; Chattanooga R. Co. v. Lyon, 89 Ga. 23; City of Greensboro v. McGibbony, 93 Ga. 672.

No special damages are alleged, except such as may flow from mere fright. As a general rule, damages for mere fright are not recoverable. See State Mutual Life Asso. v. Baldwin, 116 Ga. 860; Mabry v. City Electric Co., Id. 624; Cole v. Atlanta R. Co., 102 Ga. 478; Chapman v. Telegraph Co., 88 Ga. 763. There, of course, may be instances where fright may be considered as an element of damages, but they should be restricted to where there is some physical injury attending the cause of the fright, or, in the absence of physical injury, where the fright is of such character as to produce some physical or mental impairment directly and naturally resulting from the wrongful act. Hnder any other conditions, fright should be regarded as mere emotion, and not sufficiently substantive to be the basis of a recovery for damages. The declaration does not allege any facts which, in this case, would authorize a recovery for fright. See, also, in this connection, 1 Joyce on Dam. §§ 220, 221.

Are the allegations of the petition sufficient to support a claim for punitive damages? When the circumstances connected with the commission of a tort are such as show wilful misconduct or wantonness, the imposition of such damages is justified. Southern Ry. Co. v. O’Bryan, 119 Ga. 147. The petition avers that the conductor knew that the plaintiff was being put off-in the nighttime, at a place other than that at which he had agreed he would stop the train for her to alight, and knew that the place was dark and that there were no lights. This was wilful misconduct on his part. When the plaintiff alleged in substance that while under the care and protection of the defendant, in whom she had a right to rely for information and who was bound to extraordinary diligence for her safety, she was falsely informed by the conductor that "she was at the place where she had stipulated to disembark and that the conductor knew the representation to be false at the time he made it, and that she was deceived thereby and induced to leave the train, burdened with the care of children and bundles, at night, in a strange place, and to be left on the railroad track, remote from residences or other places of refuge, there was effectually alleged, upon the part of the conductor acting within the scope of his. employment, the perpetration of a positive wrong amounting to wilful misconduct, and such as, if true, would support a finding for punitive damages against the defendant. Inasmuch as there are sufficient allegations in the declaration to support a recovery for nominal as well as punitive damages, it follows that it was erroneous for the court to dismiss the case upon general demurrer.

Some of the grounds of the special demurrer were well taken, and others were not. The averments relating to the notice alleged to have been given by the plaintiff to her husband and her expectation in relation thereto should have been stricken. . The averments relating to the acts of the plaintiff and occurrences that transpired after the plaintiff alighted from the train, and her alleged mental distress, and that the conductor could have backed the train from the Eome & Decatur crossing and allowed her to re-embark, which are objected to in the 3rd ground of the special demurrer, should hare been stricken from the petition. In other respects, the special ■demurrer was not well taken.

Judgment reversed.

All the Justices concur.