Pounds v. Cent. Of Ga. Ry. Co

• Decision Date: 19 September 1914
• Docket Number: (No. 571.)
• Citation: 142 Ga. 415,83 S.E. 96
• Parties: POUNDS. v. CENTRAL OF GEORGIA RY. CO.
• Court: Georgia Supreme Court

83 S.E. 96

142 Ga. 415

POUNDS.

v.CENTRAL OF GEORGIA RY. CO.

(No. 571.)

Supreme Court of Georgia.

Sept. 19, 1914.

(Syllabus by the Court.)

Evans, P. J., and Beck, J., dissenting.

Error from Superior Court, Chatham County; W. G. Charlton, Judge.

Action by Beulah E. Pounds against the Central of Georgia Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Beulah E. Pounds brought suit against the Central of Georgia Railway Company, for damages resulting from the homicide of her husband, Ernest T. Pounds, who, while a passenger, was killed by Charles H. Fennell in the defendant's station at Savannah. She alleged the following: On August 27, 1911, it was the duty of Fennell to act as watchman and policeman at the defendant's passenger station and to preserve order, quell disturbances, and eject disorderly passengers; and, to aid him in the performance of this duty, the defendant had provided him with a pistol and a club. Pounds, having a ticket from Savannah to Wrightsville over the line of the defendant, went to the station in Savannah to return to his home at Wrightsville, was received by the defendant as a passenger into the station and into one of its passenger cars bound for Tennille and points beyond. While in the car, Fennell began an altercation with him. Because of this he left the car and walked up past the locomotive attached to the train, containing the car he had just vacated. He then turned back to re-enter the car; but Fennell, who had been following him, suddenly and without warning "negligently and carelessly opened fire on him with a pistol, " firing several shots at him, one of which struck him just above the left eye, and another in the abdomen; and his death was immediately caused by these shots.

"The shooting was careless and negligent in that Fennell deliberately shot deceased, without lawful cause, and without due caution and circumspection."

The deceased was a passenger and entitled to extraordinary care and diligence for his protection; and the defendant was negligent in failing to protect him from Fennell, its own employe, and in that its watchman and policeman carelessly and negligently shot and killed the deceased, who, in the exercise of ordinary care, could not have avoided the injury. He was at the time trying to avoid an altercation with Fennell, who was endeavoring either to assault or evict him, without any necessity therefor; and plaintiff cannot say which was Fennell's purpose. Fennell was appointed a policeman under and by virtue of sections 472 and 473 of the city code of Savannah. The defendant's connection with his employment was that it designated him for appointment, and at its request he was so appointed. The headquarters of the police for defendant were at the Ocean Steamship Company's wharves, where there was a sergeant appointed as provided in these sections of the city code. Fennell's duties were chiefly in and about these wharves. On the day of the homicide the defendant had brought a largeexcursion into Savannah; and Fennell was ordered by the sergeant in charge to go-to the station and there preserve order and assist its officers, agents, and employes in preserving order and preventing disorder among the passengers coming in and going. Both Fennell and the sergeant were paid their salaries by the defendant. The court sustained a general demurrer to the petition, and the plaintiff excepted.

Osborne & Lawrence, of Savannah, for plaintiff in error.

H. W. Johnson, of Savannah, for defendant in error.

HILL, J. (after stating the facts as above). The case turns on the question whether the policeman who shot and killed the husband of plaintiff was the officer of the city of Savannah, and was acting as such in the discharge of his functions as policeman, or whether he was the servant of the railway company, and acting as such as to a private duty imposed on him by the order or rules of the company. If the policeman was acting as an officer of the city at the time of the homicide, the city would not be liable, for the reason that the policeman was in the discharge of a governmental function, and in such case a recovery cannot be had against the city. Cook v. Macon, 54 Ga. 4GS. No decision of this court deals with the identical question here presented for decision, but in Bright v. Central of Georgia Railway Co., 12 Ga. App. 364, 77 S. E. 372, it was held that:

"A railway corporation is not responsible in damages for an unlawful arrest of a passenger, made by a police officer appointed by and subject to the directions of the municipal authorities, notwithstanding the officer was specially detailed to preserve order at the company's depot, and his salary was paid by it."

This ruling is directly in point. While the original contained some general allegations to the effect that Fennell was in the employment of the railway company, it was later amended so as to show more accurately his status. Thi3 amendment alleged in substance as follows: Fennell was appointed a policeman under and by virtue of sections 472 and 473 of the city code of Savannah. The defendant company's connection with the employment was that it designated or nominated him for appointment, and at its request he was appointed, as provided under the above-named sections of the city code of Savannah. The headquarters of police for defendant are at the Ocean...