Mason v. Nashville, C. & St. L. Ry. Co.
| Decision Date | 18 February 1911 |
| Citation | 70 S.E. 225,135 Ga. 741 |
| Parties | MASON v. NASHVILLE, C. & ST. L. RY. CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
What purported to be a certified transcript from the docket of the mayor's court of a town in Alabama, certified by a person signing himself clerk of such court, with no seal attached and not certified as provided by the acts of Congress adopted into the Code of this state (Civ. Code 1910, §§ 5824, 5827), was not admissible in evidence.
(a) Nor was it rendered admissible because a person, who testified that he presided in the mayor's court of the town mentioned, stated that he had fined the defendant in that proceeding; and that he did not recollect the amount of the fine, "but the amount will be shown by the attached papers certified by the city clerk."
Where an action against a railroad company was brought in a county of this state, for the purpose of recovering damages on account of an injury alleged to have occurred in Alabama after the judge had stated to the jury that the plaintiff had a right to bring his suit in any county of this state where the defendant company had an office or agent, it was error to add, "but the fact that he brought it away from his home, and among strangers, is a circumstance you may consider in so far as it may throw light, or tend to throw light, upon the alleged transaction."
In an action to recover against a railroad company on account of a battery committed by its conductor on a passenger, it was not a correct statement of the rule of duty on the part of the company towards the passenger to charge: "I charge you that carriers must treat their passengers respectfully, and protect them, so far as they reasonably can, from injury or insult on the part of their employés."
Where a suit was brought against a railroad company for an assault and battery committed by its conductor upon a passenger, if the conduct of the passenger was such as to justify the act of the conductor, the company would not be liable. If the conductor's act was not justified, but mitigated by provocative words or conduct of the passenger at the time such mitigation would inure to the benefit of the company. But if the conductor committed an assault and battery upon the passenger, and the words and conduct of the passenger were such as to arouse the anger of the conductor and to tend to provoke a difficulty, but not such as to justify the act of the conductor, this would not free the company from liability.
(a) Peavy v. Georgia Railroad & Banking Co., 81 Ga. 485 8 S.E. 70, 12 Am.St.Rep. 334; Georgia Railroad & Banking Co. v. Richmond, 98 Ga. 495, 25 S.E. 565; City Electric Railway Co. v. Shropshire, 101 Ga. 33, 28 S.E. 508; Georgia Railroad & Banking Co. v. Hopkins, 108 Ga. 324, 33 S.E. 965, 75 Am.St.Rep. 39; Central of Georgia Railway Co. v. Motes, 117 Ga. 923, 43 S.E. 990, 62 L.R.A. 507, 97 Am.St.Rep. 223; Dannenberg v. Berkner, 118 Ga. 885, 889, 45 S.E. 682; Macon Railway & Light Co. v. Mason, 123 Ga. 773, 776, 51 S.E. 569, reviewed and modified so as to conform to the ruling now made.
Error from Superior Court, Dade County; A. W. Fite, Judge.
Action by R. E. Mason against the Nashville, Chattanooga & St. Louis Railway Company. Judgment for defendant, and plaintiff brings error. Reversed.
J. P. Jacoway, H. P. Lumpkin, Paul D. Wright, J. E. Rosser, and W. M. Henry, for plaintiff in error.
Brown, Spurlock & Brown and Foust & Payne, for defendant in error.
Mason brought suit against the Nashville, Chattanooga & St. Louis Railway Company to recover damages on account of an alleged assault by the conductor of the defendant. The defendant contended that the plaintiff was drunk and disorderly, used foul and abusive language to the conductor, and brought on the difficulty, and that the conductor was justified in what he did, or, at least, that the company was not liable. The jury found for the defendant. The plaintiff moved for a new trial, which was refused, and he excepted.
1. What purported to be a certified transcript from the docket of the mayor's court of Bridgeport, Ala., certified by a person signing himself "Clerk Mayor's Court of Bridgeport," with no seal attached, and not certified as provided by the acts of Congress, adopted into our Code, was admitted in evidence over objection. The presiding judge, in admitting it, said: The certificate was not such as to render the purported transcript admissible in evidence. Civ. Code 1895, §§ 5237, 5238 (Civ. Code 1910, §§ 5824, 5827). Nor do we see how an inadmissible certificate became legal evidence because it undertook to certify to an admission or plea of guilty. This certificate was attached to answers of a witness to interrogatories, tending to show that the witness had presided in the mayor's court and had fined the defendant in the proceeding when brought before him; and that he did not recollect the amount of the fine, "but the amount will be shown by the attached papers certified by the city clerk." This reference did not make the transcript admissible.
2. The court charged as follows: "Now, gentlemen, I will state in the outset that the plaintiff had the right to bring his suit in this county or in any other county where the defendant company had an office or agent; but the fact that he brought it away from his home, and among strangers, is a circumstance you may consider in so far as it may throw light, or tend to throw light, upon the alleged transaction." If the plaintiff had a legal right to bring suit in Georgia, this charge brought into the case a new issue,--his motive or reason for so doing. If this were an issue for the jury, the plaintiff and defendant could introduce evidence in regard to it, and a collateral question would be injected into the main trial. Suppose he had been asked why he had brought the suit in this state, and had replied that the rules of practice or evidence in Georgia were more favorable to such suits than those of Alabama, would it have been competent to enter into a trial of the relative effect of the rules of practice or evidence of the two states on the subject of damage suits? Or suppose he had answered that the presiding judge of the circuit in Alabama where the suit could be brought was his personal enemy, could evidence pro and con as to the truth of this statement have been introduced, and could a trial of the qualification of a foreign judge have been superimposed upon the trial of the claim for damages? Where would be the limit of the examination, if the motive or reason of a plaintiff in selecting a certain jurisdiction, where he had a right to sue, could be made an issue in the case?
The fact that counsel on both sides had commented on the location of the suit, and that the plaintiff's counsel orally requested a charge that the plaintiff had the right to bring it in the county where it was brought, did not authorize an additional charge that his bringing it away from home and among strangers was a circumstance which the jury might consider, "in so far as it may throw light, or tend to throw light, on the alleged transaction." The "alleged transaction" was an assault by a conductor on a passenger, occurring in Alabama. How could a choice of jurisdiction, if lawful, throw light on the alleged assault? If there might be a case where something appearing on the face of the record or the manner of conducting a trial might furnish legitimate ground for the jury to consider, a mere selection authorized by law between two jurisdictions in which to sue does not open the door for a charge authorizing prejudicial inferences therefrom in regard to the alleged cause of action.
3. The court further charged: "I charge you that carriers must treat their passengers respectfully, and protect them, so far as they reasonably can, from injury or insult on the part of their employés." "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." (Italics ours.) Civ. Code 1895, § 2266 (Civ. Code 1910, § 2714). This duty is due from the carrier, not only on behalf of himself, but on behalf of his agents to whom he intrusts its discharge. The charge quoted was erroneous.
4. A consideration of the charges of which complaint was made on the subject of the provocation by the plaintiff of the difficulty with the conductor will show that they were in some respects inaptly worded. But aside from any question of inaccuracy in expression on the part of the presiding judge this court has said that if a passenger on a railway train, by assault upon the conductor, or by abusive language, or the like, provokes a difficulty and unfits the conductor for the performance of his duties as such, and the latter commits an assault and battery upon him, the company is not liable, although the battery may not be entirely justifiable, or may be excessive in its character. In some instances even a broader mode of expression has been employed. See Peavy v. Georgia Railroad & Banking Co., 81 Ga. 485, 8 S.E. 70, 12 Am.St.Rep. 334; Georgia Railroad & Banking Co. v. Richmond, 98 Ga. 495, 25 S.E. 565; City Electric Railway Co. v. Shropshire, 101 Ga. 33, 28 S.E. 508; Georgia Railroad & Banking Co. v. Hopkins, 108 Ga. 324, 33 S.E. 965, 75 Am.St.Rep. 39; Central of Georgia Ry. Co. v. Motes, 117 Ga. 923, 43 S.E. 990, 62 L.R.A. 507, 97 Am.St.Rep. 223; Dannenberg v. Berkner, 118 Ga. 885, 889, 45 S.E. 682; Macon Ry. & Light Co. v. Mason, 123 Ga. 773, 776, 51 S.E. 569. Permission was given to review the decisions in these cases, so far as necessary...
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