Massengale v. Atlanta, B. & C.R. Co.

• Decision Date: 20 February 1933
• Docket Number: 22533.
• Citation: 168 S.E. 111,46 Ga.App. 484
• Parties: MASSENGALE v. ATLANTA, B. & C. R. CO. et al.
• Court: Georgia Court of Appeals

168 S.E. 111

46 Ga.App. 484

MASSENGALE v. ATLANTA, B. & C. R. CO. et al.

No. 22533.

Court of Appeals of Georgia, Second Division

February 20, 1933

Syllabus by Editorial Staff.

Neither carrier nor terminal operator is liable to passenger for acts of servant not intrusted with performing any duty of master to passenger, in absence of negligence in failing to anticipate or prevent performance of servant's act (Civ Code 1910, §§ 3603, 4414).

Carrier and terminal operator held not liable for insulting language directed to passenger through train window, while train was standing in station, by porter whose duties were connected with mail, in absence of evidence that defendant knew of occurrence in time to prevent it or had reason to anticipate it (Civ. Code 1910, §§ 3603, 4413).

Error from Superior Court, Fulton County; E. D. Thomas, Judge.

Suit by R. M. Massengale against the Atlanta, Birmingham & Coast Railroad Company and another. To review a judgment of nonsuit, plaintiff brings error.

Affirmed.

Hewlett & Dennis and T. F. Bowden, all of Atlanta, and N. F Culpepper, of Greenville, for plaintiff in error.

Colquitt Parker, Troutman & Arkwright and Howell, Heyman & Bolding, all of Atlanta, for defendants in error.

Syllabus OPINION.

STEPHENS Judge.

1. Neither a carrier nor one who furnishes to a carrier terminal facilities for taking on passengers, owing a duty to one who is a passenger, violates that duty through any act of a servant towards the passenger, where the servant committing the act has not been intrusted with the performance of any duty owing by the master to the passenger, and where the master is not negligent in failing to anticipate, or to prevent, the performance of the act of the servant. Alabama Great Southern Rwy. Co. v. Pouncey, 7 Ala. App. 548, 61 So. 601; Hall v. S. A. L. Ry., 84 Fla. 9, 93 So. 151; Southern Ry. v. Crone, 51 Ind.App. 300, 99 N.E. 762; Louisville & Nashville R. Co. v. Lindsay, 212 Ky. 516, 279 S.W. 965; Brown v. Chicago, etc., Ry. Co. (C.C.A.) 139 F. 972, 2 L.R.A. (N. S.) 105, 3 Ann.Cas. 251; Segal v. St. Louis, etc., Rwy. Co., 35 Tex.Civ.App. 517, 80 S.W. 233; Hoff v. Public Service Rwy. Co., 91 N. J. Law, 641, 103 A. 209, 15 A.L.R. 860; Prokop v. Gulf, etc., Ry. Co., 34 Tex.Civ.App. 520, 79 S.W. 101; 10 C.J. 960; 2 Hutcheson on Carriers (3d Ed.) §§ 980, 981, 982 and 989; Civil Code 1910, §§ 3603, 4413. Under these conditions the servant, as respects the master, stands in the relationship of one who is not a servant but a stranger, and the master, in the absence of negligence in failing to anticipate or to prevent the performance of such tortious act by the servant, is not liable for the servant's act. Savannah, etc., Rwy. Co. v. Boyle, 115 Ga. 836, 42 S.E. 242, 59 L.R.A. 104; Central of Ga. Ry. Co. v. Hopkins, 18 Ga.App. 230, 89 S.E. 186.

2. In a suit against the Atlanta, Birmingham & Coast Railroad Company and the Atlanta Terminal Company, the latter being a company operating, for the defendant railroad company, the depot station...