The City v. Brauss

• Decision Date: 28 February 1883
• Citation: 70 Ga. 368
• Parties: The City and Suburban Railway of Savannah. vs. Brauss.
• Court: Georgia Supreme Court

70 Ga. 368

The City and Suburban Railway of Savannah. vs. Brauss.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1883.

Actions. Contracts. Torts. Damages. Verdict. New Trial. Before Judge Harden. City Court of Savannah. November Term, 1882.

Brauss brought suit against the City and Suburban Railway of Savannah. His declaration contained two counts, the first of which alleged, in brief, as follows:

The defendant was a common carrier for hire, of passengers by street cars, in the city of Savannah. Plaintiff entered one of defendant's cars on Anderson street and became a passenger, and the defendant received the usual and customary fare, and became bound to convey plaintiff from Anderson street along Abercorn street to Liberty street, and then to give to plaintiff a transfer ticket, by virtue of which another of defendant\'s cars would carry him from Liberty street to his place of residence. Defendant\'s agent, however, neglected and refused to give plaintiff a transfer ticket, and upon receiving his fare, informed him that such fare would entitle him to ride to his destination; and thereupon, at Liberty street, the conductor of the first car stopped the Liberty street car and personally transferred plaintiff thereto, placing him under the charge, care and protection of the conductor of the second car. But the latter subsequently demanded payment of fare or the production of a transfer ticket from plaintiff, and upon plaintiff\'s failure to comply with the demand, ejected him in the middle of the street, requiring him to get off in the mud; and the defendant broke its contract of carriage with him. The car was crowded with passengers, and plaintiff was mortified, disgraced and damaged by such expulsion. Plaintiff complained to the company of his treatment, and was willing to come to a settlement of his damages, but the latter refused to pay him anything, and thereby became liable to him for counsel fees for stubborn and litigious conduct.

The second count alleged substantially the same facts, and in addition alleged that no transfer ticket was necessary at the junction of Abercorn and Liberty streets.

The evidence for the plaintiff was, in brief, as follows: On Sunday afternoon, April 30, 1882, he and his wife boarded defendant's car at the junction of Anderson and Abercorn streets. He had purchased some street car tickets two days before, and had three of them left. He inquired of the conductor whether these tickets would be sufficient to carry him to his destination. The latter said that they would. He thereupon gave a ticket for himself and one for his wife, and informed the conductor that he desired to be transferred at Liberty street to the car which would carry him to his home. On reaching Liberty street, the conductor of the car in which plaintiff was, hailed theconductor of the Liberty street car, and informed him that he had a transfer. The latter stopped, and plaintiff and his wife entered the Liberty street car. After it had started, the conductor called upon plaintiff for his fare. Plaintiff claimed that he had been transferred, but the conductor insisted that he must have either a ticket or a fare. Plaintiff had no money in his pocket at the time, and declined to pay. The conductor stopped the car in the middle of the block, and plaintiff and his wife were compelled to get out in the mud and walk home. The conductor\'s manner was " very short, " There were about thirty people in the car, and he was much ashamed and wounded in his feelings when required to leave. On Monday morning following, he met the president of the company, and complained to him, telling him that he wanted satisfaction. The president responded that he would see the superintendent. Plaintiff said he wanted satisfaction. The president said he could give him none. If the necessary apologies and reprimands had been made, there would have been no suit. Plaintiff did not know of the requirement of a transfer ticket at the point where the transfer was made. At another junction on defendant\'s line, he had been transferred without a ticket, and transfers were so made at that place. On the succeeding day, a witness, to test the point, rode over the same track, and was transferred without a ticket.

The evidence for the defendant was, in brief, as follows: The Abercorn street car was what is known as a "bob-tailed" car, in which passengers deposit their fares in the box, and the driver or conductor is not allowed to receive them. The driver on this car sometimes acted as conductor on other cars, and would then receive fare. There was a junction on defendant's line, where passengers were personally transferred from one car to another, but the Abercorn and Liberty street cars did not ordinarily connect with each other, and transfer tickets were required, and notice to this effect was published. The conductors werefurnished with transfer tickets, and required to furnish them to passengers, upon application therefor. No direct application was made for transfer tickets by the plaintiff, nor did the conductor of the Abercorn street car remember the conversation detailed by plaintiff. The Liberty street car happened to be behind its usual time, and the two cars met. The conductor of the Liberty street car heard some one hail him, and on stopping, plaintiff and his wife boarded the car. It was his duty to require transfer tickets or money from passengers for the payment of fares. Plaintiff declined to furnish either, saying that he had been transferred from Abercorn street. The conductor could not, under the rules of the company, accept such a statement from a passenger in lieu of fare, and he was compelled to require plaintiff and his wife to leave the car. Plaintiff said he was near home and it made no difference. There was no ill-will toward plaintiff on the part of the conductor. He did not consider it his duty to put them off at a crossing, but stopped the car where he did because he was near the curve of a switch, and the rule was not to stop on a curve. The president denied any discourtesy to plaintiff, but said that he could not reprimand drivers without investigation, as frequent attempts were made to evade the payment of fare, and upon investigation thereof, he became satisfied that the conductors had acted properly.

The jury found the following verdict:

" We, the jury, find for the plaintiff the amount of his attorney's fees and costs of court, as established by the practice of this court, and further find for plaintiff in the sum of fifty dollars ($50) as damages."

Defendant moved for a new trial on the following grounds:

(1.) Because the presiding judge allowed the said plaintiff, against the objection of defendant, to testify as to his feelings when required to leave the Liberty street car of defendant, upon the failure and refusal of plaintiff to produce a ticket or pay his fare, it appearing from the evidence that any wound to plaintiff's feelings was caused by his own conduct in so refusing.

(2.) Because the judge, at the conclusion of plaintiff\'s evidence, and of the evidence produced on his behalf, refused, on motion of defendant, to non-suit said plaintiff and dismiss said case, it appearing from said evidence and the petition filed, that said complaint was for an alleged wrong done by defendant\'s violation of its contract; that said case as presented was a case arising on contract; that no actual pecuniary loss or damage was proved, and that the only damage claimed was exemplary damage for alleged injury to plaintiff\'s feelings.

(3.) Because the judge erroneously charged the jury as follows: " If the conductor of defendant's car said or did anything which misled the plaintiff into going upon the other car of defendant without a proper ticket or transfer, it was the company's fault; and while plaintiff was ejected by the subsequent conductor, having the right to do so, the company would be responsible for the acts of both conductors; the company would be responsible, although the conductor of the second car acted right."

(4.) Because the general charge given to the jury was erroneous.

(5.) Because the judge erroneously charged the jury in the language of sections 3066 and 3067 of the Code of Georgia, and in connection therewith charged as follows: " That is to say, unless there be aggravating circumstances, you cannot give any except actual damages, but if there be aggravating circumstances you may give such damages as, in your opinion, would deter the wrong-doer from repeating the wrong, or would be sufficient to compensate the plaintiff for his wounded feelings; and in such case, that is, where there are aggravating circumstances, either in the act or the intention, it is not necessary to prove any special amount of damage; but whether damages should be allowed or not, and if allowed, how much, are exclusively matters for the determination of the jury."

(6.) Because the judge refused, though requested by the defendant in writing, to give the following charges to the jury.

(a.) " Exemplary damages can never be allowed in cases arising on contract."

(b.) "If the jury find that the plaintiff, Mr. Brauss, got on the Liberty street car of the defendant; that the conductor, in accordance with the rule and custom of the company, demanded his fare or a ticket; that plaintiff failed and refused to pay such fare or produce such ticket; that the rule of the company required the conductor to collect such fare or ticket or to eject the party so refusing from the car, and that the conductor did obey said rule and require the plaintiff to leave said car, then I charge you that the plaintiff is not entitled to recover any damage for such ejection from the said car, in obedience to said rule of said company."

(c.) "While a corporation may be liable for the torts of its agents in the prosecution and within the scope of its business, it cannot be made liable for such torts, unless the agent himself would be liable; that is, the...