Bryant v. Atlantic Coast Line R. Co.
| Decision Date | 20 March 1917 |
| Docket Number | 7924. |
| Citation | 91 S.E. 1047,19 Ga.App. 536 |
| Parties | BRYANT v. ATLANTIC COAST LINE R. CO. |
| Court | Georgia Court of Appeals |
Rehearing Denied April 4, 1917.
Syllabus by the Court.
The plaintiff's petition sets forth a cause of action, and the court erred in dismissing it on demurrer. Southern Ry. Co. v. Wood, 114 Ga. 161, 39 S.E. 922; Central of Georgia Ry. Co. v. Gortatowsky, 123 Ga. 366, 51 S.E 469.
The suit is by a passenger against a railroad company, the alleged cause of action being the tortious and continuous failure to provide for the plaintiff's comfort while a passenger, the journey commencing at a point within this state and terminating at a point without this state. Held, the county in which the transportation and the alleged injuries commenced is not a wrong venue for the action. Civ. Code 1910, § 2798; Southern Ry. Co. v O'Bryan, 112 Ga. 127, 37 S.E. 161; Central of Georgia Ry. Co. v. Dorsey, 116 Ga. 719, 42 S.E. 1024; Atlantic Coast Line R. Co. v. Powell, 127 Ga. 805 56 S.E. 1006, 9 L.R.A. (N. S.) 769, 9 Ann.Cas. 553; Owens v. Nichols, 139 Ga. 475, 77 S.E. 635; Friedman v. S A. L. Ry., 124 Ga. 472, 52 S.E. 763.
Where a petition sets forth matter which is not legally necessary to plead, but which is nevertheless pertinent to the alleged cause of action and which would upon the trial be proper matter for proof, such matter is not subject to general demurrer on the ground that it is irrelevant. What is germane cannot be irrelevant, even though it may not be essential to plead it. The trial court therefore erred in sustaining the several grounds of demurrer not in accord herewith. Reese v. Reese, 89 Ga. 645, 15 S.E. 846; S.C. & Ga. Ry. v. Southern Ry. Co., 111 Ga. 420, 36 S.E. 593; Wilder v. Wilder, 138 Ga. 574, 75 S.E. 654.
Where the ticket agent of a railroad company, while acting within the apparent scope of his authority, negotiates with a prospective passenger for transportation and for sleeping car berths on one of the company's trains regularly affording such service and comforts to the public, the passenger may rely upon the agent's apparent authority, and is not required to first communicate with the principal and verify the agent's actual authority. The petition in this case having alleged such a transaction between passenger and agent, it was not subject to demurrer on the ground that it was not made to appear that the agent's acts were in fact within the scope of his authority. Civ. Code 1910, § 3595; Milledgeville Water Co. v. Edwards, 121 Ga. 555, 49 S.E. 621; Central of Georgia Ry. Co. v. Gortatowsky, 123 Ga. 366, 51 S.E. 469.
The other grounds of the demurrer are without merit.
Error from City Court of Blakely; R. H. Sheffield, Judge.
Action by T. J. Bryant against the Atlantic Coast Line Railroad Company. Judgment for defendant on sustaining a demurrer to the complaint and dismissing the suit, and plaintiff brings error. Reversed.
Glessner & Collins, of Blakely, for plaintiff in error.
Pope & Bennet, of Albany, for defendant in error.
The suit was instituted in the city court of Blakely, in the county of Early. The defendant filed a demurrer, which the trial judge sustained, dismissing the suit, and the plaintiff excepted.
The petition shows the following facts: The defendant company operates a line of railroad from Montgomery, Ala., to Jacksonville, Fla., passing through the town of Jakin, in Early county, Ga., at which point the company maintains a station in the charge of a local agent, whose office is open during the day and closed at night. One of the regular passenger trains operated by the company over this line of road, and scheduled to arrive at Jakin at 11:30 o'clock at night, carries a sleeping car, wherein, upon paying additional fare, passengers are afforded additional comforts. The plaintiff, who was 61 years old, feeble and suffering from hay fever, hoped to improve his health by a trip to Homestead, Fla., provided he could obtain the additional comforts afforded by the sleeping car from Jakin to Jacksonville in taking the contemplated journey, and desired like accommodations for his sister, 64 years of age, who was to accompany him as nurse. He applied to the local agent at Jakin for such transportation and accommodations, making known to the agent...
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