Savannah Electric Co v. Wheeler
| Decision Date | 09 July 1907 |
| Citation | 128 Ga. 550,58 S.E. 38 |
| Parties | SAVANNAH ELECTRIC CO. v. WHEELERet al. |
| Court | Georgia Supreme Court |
A street railway company is liable for a tort committed by its conductor in the prosecution and within the scope of its business, whether by negligence or willfully.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 1899-1903.]
Where a petition alleged that a conductor on the car of a street railway company, while engaged in the prosecution and within the scope of his business in collecting fares, failed and refused to give a passenger correct change, and, upon request therefor, drew a pistol and fired at the passenger, but that the ball missed the passenger and struck a woman passing on the public street through which the car was running, causing her death, and that the plaintiffs were the husband and children of the decedent, the allegations set out a cause of action against the company, and the petition was not demurrable.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 12, Corporations, §§ 1899-1904; vol. 34, Master and Servant, §§ 1230-1233.]
Allegations that the company knowingly placed in charge of one of its passenger cars a conductor of bad character, who was drunk and armed with a pistol, and that a homicide occurred in the manner indicated in the preceding note, were not demurrable.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1209.]
(Syllabus by the Court.)
Error from Superior Court, Chatham County; Geo. T. Cann, Judge.
Action by Ferry F. Wheeler and another against the Savannah Electric Company. Judgment for plaintiffs, and defendant brings error. Affirmed.
Ferry F. Wheeler and Ferry F. Wheeler, Jr., a minor, appearing by his father as next friend, brought suit against the Savannah Electric Company. The petition contained three counts. The first alleged, in brief, as follows: The defendant, a corporation, operates, maintains, and controls a system of electric street railways, running in and through the streets of the city of Savannah, including a line of railway running through Broughton street, in the city of Savannah, and did so on October 26, 1905. It was a common carrier of passengers over said line. On the afternoon of that day one of its passenger cars was run and operated by two of its servants and agents; one of them being the motorman and the other the conductor. The conductor was the principal servant in charge of the car. He was drunk to such an extent that he was unable to properly perform his duties as conductor while collecting fares from the passengers. He was so unsteady upon his feet that he reeled from side to side of the car, and failed to make proper change for the passengers, in one instance giving pistol bullets for change. He failed and refused to give one of the pas sengers on the car the change that was due him, and, upon request to do so, with an oath, he drew his pistol from his pocket and tried to shoot the passenger. The latter grabbed the pistol barrel, and scuffled with the conductor in order to keep from being shot. During the scuffle the conductor fired the pistol three times at the passenger. One shot struck the passenger; the other two missing him. One of them passed through the window of the car, and struck Mrs. Wheeler, causing her death in a few minutes. At the time the bullet wound was received by her she was returning to her home on Broughton street, and was in the act of going up the steps of her house. At that time and place Broughton street was full of people passing and repassing, and any pistol shot fired in the car, as was done by the conductor, was very apt to do injury or cause death to some person upon the street. The shot was not actually intended for Mrs. Wheeler, and was not fired at her. It was intended to injure the passenger on the car or to kill him, and it would have done so had he not grabbed the pistol in time to change the course of the shot. The passenger had paid his fare, and had given no provocation whatever for the assault made upon him. There was no quarrel between him and the conductor and no enmity existed between them; but the assault upon him by the conductor was due to the drunken condition of the latter. The conductor was in a drunken condition at the time he took charge of the car as conductor, and had so been for some time prior thereto. On account of his condition he was totally unfit to be put in charge of the car, and the corporation knew of his unfitness to run the car on that day prior to the time of the shooting, and in time to have prevented him from taking charge of the car and continuing to act as conductor thereof. Yet the company negligently permitted him to act for it as conductor of the car from the time it put him in charge up to and including the time of the death of Mrs. Wheeler. One of the plaintiffs was her husband and the other was her only child. The homicide resulted from the negligence of the defendant in permitting the drunken conductor, who was also armed, to its knowledge, to act as conductor of said car, and from the negligence of the defendant, through its conductor, in violating the duty it owed to the passenger. The direct cause of the death of Mrs. Wheeler was the bullet fired by the conductor, and this was a tort, an act of negligence attributable to the defendant. The pistol was also fired at a place where the car was being operated and run in a public street of the city, and such firing at that place was a violation of the municipal laws of the city which prohibited the discharge of firearms within the limits of the city. Broughton street is about 80 feet wide, and the street car track runs down the middle of it The distance between the conductor and Mrs.
Wheeler at the time the pistol shot was fired, was about 45 feet There were also allegations as to the value of her life and her capacity to earn money. The second count differed from the first mainly in alleging that the defendant negligently permitted the drunken conductor to act for it as conductor from the time it put him in charge of the car on the day of the homicide up to and including the time of the injury, knowing his condition and that he was armed, and that the homicide resulted from such negligence. It is also alleged that the defendant was negligent in failing to exercise ordinary care and diligence in the employment of the conductor to act for it; that he was an unfit and improper person for such employment by reason of being habitually addicted to alcoholic liquors when on duty and being, while under such influence, a dangerous character who was apt to use his pistol, which he always carried when on duty, to the knowledge of the defendant; and that he had borne a bad record for a long time previous to his employment by the defendant on account of his drinking habits. Several instances of his previous conduct were stated. It was further alleged that on the evening in question he was drinking heavily at a resort at the terminus of the company's line, and was in a drunken condition on the car within the knowledge of the conductor and motorman who then had charge of it; that he had been previously assigned to duty by the defendant to relieve said conductor and take charge of the car when it should arrive at the shed in the city of Savannah and start on a tour through the streets for the purpose of carrying passengers; that it was the rule and custom of the defendant to inspect at said "car shed" the conductors and motormen who were assigned to duty as a relief crew to take the place of other motor-men and conductors who had to be relieved. At that place conductors were "checked up" and their accounts handed in just prior to being temporarily relieved from duty. The place of inspection is where the cars pass about half a mile from the station and headquarters. At that place the motorman and conductor who had brought in the car from the terminus turned it over to their successors, one of whom was the conductor who caused the injury. He was visibly so much under the influence of liquor that he was totally unfit to act as conductor. The company was also negligent in allowing him to take charge of the car at that time and place. It was also negligent in failing to have any inspection of him as to his fitness to run the car, and in failing to remove him from his position as conductor prior to the time of the Injury. The third count briefly alleged that the car was being operated by two of the agents of the company, one of them being the conductor, who was the principal agent; that on the car was a passenger who had duly paid his fare; that without any provo cation the conductor assaulted him with a pistol; and that while shooting at the passenger the conductor accidentally and negligently shot and killed Mrs. Wheeler, who was going up the steps of her home on Broughton street The defendant filed a general demurrer, which was overruled, and it excepted.
Osborne & Lawrence, for plaintiff in error.
R. R. Richards and R. G. Richards, for defendants in error.
LUMPKIN, J. (after stating the foregoing facts). The demurrer to the plaintiff's petition was overruled. It raised several questions.
1, 2. Was the act of its conductor in shooting at the passenger attributable to the company, or was this the individual act of the conductor, for which the company was not responsible? "Every person shall be liable for torts committed by his * * * servant by his command, or in the prosecution and within the scope of his business, whether the same be by negligence or voluntary." Civ. Code 1895, § 3817. "Every corporation acts through its officers, and is responsible for the acts of such officers in the sphere of their appropriate duties." Civ. Code 1895, § 1861. What was the master's business? Operating electric street cars as a common carrier of passengers. In its...
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