Payne v. Allen

• Decision Date: 14 February 1923
• Docket Number: (No. 3104.)
• Parties: PAYNE, Agent, v. ALLEN.
• Court: Georgia Supreme Court

155 Ga. 54

116 S.E. 640

PAYNE, Agent,

v.ALLEN.

(No. 3104.)

Supreme Court of Georgia.

Feb. 14, 1923.

(Syllabus by the Court.)

In an action for damages against a railroad company for the negligent homicide of a person, based on violation of the duty to exercise extraordinary diligence for the safety of such person as a passenger on one of the trains of the defendant, where the petition alleged in general terms that at the time of the homicide the person killed "was a passenger" on a passenger train of the defendant, but did not allege any antecedent facts sufficient to show the status of such person as a passenger, the petition was subject to special demurrer on the ground that the petition did not contain allegations of such character.

The error committed in overruling the special demurrer, referred to in the preceding note, entered into the further trial of the case, and rendered all subsequent proceedings nugatory.

(Additional Syllabus by Editorial Staff.)

Hines, J., dissenting.

Certiorari from Court of Appeals.

Action by Joanna Allen against J. B. Payne, Agent, etc. A judgment for plaintiff was affirmed by the Court of Appeals (28 Ga. App. 8, 110 S. E. 345), and defendant brings certiorari. Reversed..

A mother instituted an action for damages for the homicide of her son. It was alleged that the homicide resulted from a "head-on collision" between a passenger train and a freight train on the railroad of the Atlantic Coast Line Railroad Company. Paragraph 7 of the petition was as follows:

"That on the 29th day of December, 1918, the said Hugh M. Allen was a passenger on the railroad of the defendant, on one of the trains of defendant which left the city of Bain-bridge about 4 o'clock a. m., his destination being the town of Climax, in said county."

Paragraph 8 was as follows:

"That the engine drawing said passenger train on said morning was running without a headlight, and about two miles from the city of Bainbridge, in said county, said passenger train had a head-on collision with a freight train of the defendant, approaching from the opposite direction on the same track, in which collision the said Hugh M. Allen was killed."

A special demurrer was filed to paragraph 7, as follows:

"In the seventh paragraph, as to Hugh Allen being a passenger on one of the trains of the defendant, on the ground that it is a mere conclusion of the pleader, without any facts alleged to sustain the same, and it is not alleged how said Hugh Allen became a passenger, whether by the purchase of a ticket, or by the payment of fare, or by holding free transportation, or otherwise."

It was not elsewhere alleged in the petition what facts were relied on to show that plaintiff's son was a passenger. The demurrer was overruled, and the case proceeded to trial. A verdict was rendered for the plaintiff, and the defendant made a motion for new trial, which being overruled, the defendant excepted. On review, the judgment of the trial court was affirmed by the Court of Appeals, and the defendant brought the case to the Supreme Court by writ of certiorari.

Hartsfield & Conger, of Bainbridge, and Pope & Bennet, of Albany, for plaintiff in error.

R. L. Berner and E. W. Maynard, both of Macon, and W. M. Harrell and John R. Wilson, both of Bainbridge, for defendant in error.

ATKINSON, J. [1, 3] The controlling question in this case is whether the trial court erred in overruling the special demurrer to pargraph 7 of the petition, as set out in the statement of facts. If the plaintiff's son was a passenger on the train, the defendant would owe him the duty of extraordinary ' diligence to protect his person and life. Civil Code 1910, § 2714. If he was a trespasser on the train, the company would not owe him the duty of extraordinary diligence (Purvis v. Atlanta Northern Railway Co., 136 Ga. 852 [3], 72 S. E. 343), though he would be entitled to protection against willful, wanton, and unnecessary violence by the employees in expelling him from the train (Smith v. Savannah, Florida & Western Railway Co., 100 Ga. 96, 27 S. E. 725; Anderson v. Southern Railway Co., 107 Ga. 500, 33 S E. 644). It follows that, in a suit of the character under consideration, vital consequencesdepend upon whether the Injured person was a passenger at the time of the injury. His status as a passenger must depend upon the existence or nonexistence of antecedent facts of varying character, as illustrated by numerous decisions of this court

It is said in Civil Code 1910, $ 2715:

"A carrier may demand prepayment of fare; but if, by its permission, persons enter its vehicle with the intention of being carried, an obligation to pay fare is implied on the part of the passenger, and the reciprocal liability of the carrier arises."

This affords one instance of a definition of passenger, but is not exhaustive. There is no statute in this state giving a complete and exhaustive definition of the term "passenger." The relation arises out of contract express or implied, and must depend upon the facts of each case, which are necessarily variable. As illustrative of the variety of facts upon which the relation of passenger may arise, a few cases may be cited. Atlanta, etc., Ry. Co. v. Ayers, 53 Ga. 12; Stevens v. Central R. Co., 80 Ga. 19, 22, 5 S. E. 253; Western & Atlantic R. Co. v. Turner, 72 Ga. 292 (1-a), 53 Am. Rep. 842; Metropolitan Street Railroad Co. v. Moore, 83 Ga. 453, 10 S. E. 730; Chattanooga, Rome & Columbus R. Co. v. Huggins, 89 Gn. 494 (6), 15 S. E. 848; Wynn v. City, etc., Ry., 91 Ga. 344 (5), 17 S. E. 649; Ellington v. Beaver Dam Lumber Co., 93 Ga. 53, 19 S. E. 21; ...