Syllabus by the Court.
The
allegations of the petition, omitting formal parts, are
"1. That Southern Stages, Inc. is a corporation, having
its principal office and place of business in Bibb County
and is subject to the jurisdiction of this court. 2. That
American Casualty Company is an insurance corporation with
its principal office in Reading, Pa., and this defendant
likewise has an agent and place of business in Bibb County.
3. Defendant Southern Stages, Inc., is a common carrier of
passengers, operating under a certificate from the Public
Service Commission of Georgia, and at the time of the wrong
complained of herein, the American Casualty Company, as
required by law had filed with the Public Service Commission
its policy of insurance, to insure the payment of any
judgment created because of negligence of the said common
carrier or its agents whereby injury or damage was caused or
done to persons or property because of the negligence of the
said motor carrier and its agents. 4. Plaintiff [Martha
Clarke] is the mother of Albert Clarke, deceased. 5. Prior to
his death, deceased, Albert Clarke, worked and earned the sum
of $35.00 per month, and his board, and contributed to the
support of plaintiff and plaintiff was dependent on him. 6.
On or about October 22, 1940, deceased, Albert Clarke,
purchased a ticket from defendant motor carrier to be
transported from Columbus, Georgia, to Eatonton, Georgia.
When the bus reached Roberta, Georgia, the employees and
agents of the said motor carrier, caused and had Albert
Clarke removed from the bus and locked up in the jail at
Roberta, claiming he was drunk. 7. Plaintiff's son was
confined in the jail on the accusation of the bus driver.
Later on plaintiff's son was examined by a physician and
it was discovered he was sick and not drunk. The physician
advised that the boy be rushed to a hospital at once to save
his life. The Chief of Police then took plaintiff's son
to the bus company and the bus company acting through H. M.
Reeves, its agent to transact its business, refused to accept
plaintiff's son as a passenger and refused to allow him
to remain at the bus company's station and told the Chief
of Police to take him back to jail and he would have a bus
pick him up there. Mayor McCrary communicated with Mr.
Wilkerson, agent of the bus company, requesting that the boy
be carried to Macon, advising him that the boy would die
unless he got immediate medical treatment, and the said
Wilkerson, manager and agent of the bus company, acting for
it in the manner refused to carry plaintiff's son to
Macon. Plaintiff's son died Sunday, November 24, 1940. 8.
Plaintiff's son purchased a ticket from Columbus to
Eatonton, Georgia, and was entitled to be carried as a
passenger by the defendant, and it was its duty to so carry
him. 9. Plaintiff alleges that her son was sick, afflicted
with diabetes and the confinement and deprivation of a drug
called insulin was the direct, immediate and proximate cause
of his death. 10. Plaintiff alleges that the defendants were
negligent, and the negligence of the defendants caused the
death of plaintiff's son, and the negligent acts of the
defendants are specified as follows: (a) In neglecting,
declining and refusing to carry plaintiff's son as a
passenger as it contracted and agreed to do. (b) In causing
plaintiff's son to be confined in jail at Roberta,
Georgia, on the accusation he was drunk, which accusation was
untrue, and in truth and in fact the boy was sick and
nauseated from his sickness. (c) In negligently and
unlawfully refusing to carry plaintiff's son to his
destination, and in unlawfully ejecting him and causing him
to be arrested. (d) In negligently and unlawfully causing the
arrest of plaintiff's [son] and having him confined where
he could not get medical treatment. (e) In negligently and
unlawfully refusing to carry plaintiff's son to his
destination, or some place for medical treatment after
defendants were advised the boy was sick and in need of
medical attention. (f) In negligently and unlawfully causing
the death of plaintiff's son by evicting him from the bus
when he was sick and in need of medical attention, and having
him incarcerated in jail. (g) In negligently and unlawfully
failing to safely transport petitioner's son as a
passenger. (h) In putting her son off the bus and confining
him at a dangerous place, to wit, in jail, when he was sick.
(i) In negligently causing his arrest on a charge of
drunkenness when ordinary care would have revealed the boy
was sick from diabetes and nauseated from that cause. (j) In
negligently refusing to receive plaintiff's son and carry
him as a passenger, her son having paid for his ticket and
transportation, after defendants were advised her son was
sick and in need of medical care. 11. Plaintiff
alleges
there are aggravating circumstances in the
case and plaintiff is entitled to have and recover punitive
damages because of defendant's failure to carry her son
and transport him after being advised the boy was sick and in
dire need of medical care, her son having paid his fare and
therefore entitled to be carried to his destination. 12.
Plaintiff alleges she is the mother of the deceased, and he
left surviving no wife or child. The deceased son contributed
to the support of plaintiff and she was dependent on him to a
substantial extent, and plaintiff alleges she is entitled to
recover the full value of her son's life, plaintiff being
dependent on him to a considerable extent, and her son
contributed materially to her support. 13. Plaintiff sues for
the sum of $15,000.00 as the full value of her son's
life, and sues for $10,000.00 as punitive damages." The
petition was amended by attaching a copy of the
policy.
The
American Casualty Company demurred to the petition on the
following grounds: "1. Said petition fails to set out
any cause of action whatsoever against this defendant. 2.
Specially because there is a misjoinder of parties defendant
to said cause. This defendant is named as a party by reason
of the fact that it carries a public liability insurance
policy on the busses operated by said defendant, Southern
Stages, Inc., pursuant to the terms and provisions of the
statute. Said petition shows on its face that the death of
Albert Clarke did not and could not have resulted from the
negligent operation, maintenance or use of motor vehicles
insured by this defendant. The entire complaint is based upon
the alleged acts and omissions on the part of the bus
company's driver, which occurred while the bus was
standing still, and the law does not contemplate that this
defendant shall cover any such acts or omissions." The
demurrer was overruled, and the defendant excepted.
GARDNER
Judge.
The
plaintiff in error, hereinafter called carrier, contends that
its liability is restricted to damages occasioned by injuries
"resulting from the negligent operation, maintenance or
use of motor vehicles." That portion of the statute
applicable to this contention is found in the Code, § 68-612,
and is as follows: "No certificate shall be issued or
continued in operation unless the holder thereof shall give
and maintain bond, with adequate security, for the
protection, in case of passenger vehicles, of the passengers
and baggage carried, and of the public, against injury
proximately caused by the negligence of such motor common
carrier, its servants or agents; and in cases of vehicles
transporting freight, to secure the owner or person entitled
to recover therefor against loss or damage to such freight
for which the motor common carrier may be legally liable; and
for the protection of the public against injuries proximately
caused by the negligence of such motor carrier, its servants
or agents. The Commission shall approve, determine, and fix
the amount of such bonds, and shall prescribe the provisions
and limitations thereof, and such bonds shall be for the
benefit of, and subject to suit or action thereon by, any
person who shall sustain actionable injury or loss protected
thereby. The Commission may, in its discretion, allow the
holder of such certificate to file in lieu of such bond a
policy of indemnity insurance in some indemnity insurance
company authorized to do business in this State, which policy
must substantially conform to all of the provisions hereof
relating to bonds, and must likewise be approved by the
Commission. The Commission shall have power to permit
self-insurance in lieu of a bond or policy of indemnity
insurance, whenever, in its opinion, the financial ability of
the motor carrier so warrants."
It will
be observed that this section of the Code is designed to
protect three classes against financial liability of motor
common carriers to respond in damages for the negligent
conduct of the business of motor common carriers. First
motor common carriers of passengers; second, motor common
carriers of freight; and third, the public (when neither the
relationship of carrier and passenger or carrier and shipper
exists). The instant case is brought under the first
classification. The particular verbiage of the statute as
applied to this class is: "No certificate shall be
issued or continued in operation unless the holder thereof
shall give and maintain bond *** for the protection, in case
of passenger vehicles, of the passengers *** against injury
proximately caused by the negligence of such motor common
carrier, its servants or agents *** The...
