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copy of the health certificate in question was set forth in petition. The petition was demurred to upon various grounds, and the petitioner thereupon, with leave of the court, amended it. The amendment alleged: The person who notified petitioner that he must leave the train at Sulphur Springs and that he would not be allowed to ride thereon into the city of Columbus, and who, when the train arrived at Sulphur Springs, ordered him to leave it, claimed to act as a quarantine officer, but was unknown to petitioner, who "does not admit" that this person was a quarantine officer. The person "claiming to act as a quarantine officer" ordered petitioner to leave the train, "notwithstanding the fact that [he] exhibited to said person and to said conductor his health certificate as set out in full" in the original petition, "which entitled him to ride on said train into the city of Columbus." The "conductor negligently refused to interpose in any way to prevent * petitioner from being re moved from said train by said person, but, on the contrary, pointed out * petitioner to said person and thereby assisted him in removing * * petitioner from said train." The conductor "made no effort whatever to protect petitioner, or

to induce said person not to remove petitioner from said train, as it was his duty to do under the circumstances, but allowed him to be ejected from the train, contrary to law." After the allowance of this amendment the defendant renewed its original demurrer, and demurred upon other grounds. One of the grounds of the demurrer was that the allegations of the petition were insufficient to set forth a cause of action. Other grounds (which were but amplifications of the general demurrer) were: "Because it is apparent from said petition that the alleged 'agent' or 'officer' ordering plaintiff from the train was a quarantine agent or officer of said state, or some duly constituted municipal authority thereof, and was not an officer or agent of defendant, nor subject to its control or direction. * * It appears, by reasonable inference, that the person alleged to have ordered plaintiff off the train was an officer of said state or some duly constituted municipality thereof, acting within the scope of his authority or apparent authority and independently of defendant and its agents, and that defendant and its agents were without power or authority to control or interfere with said officer." The court sustained the demurrers and dismissed the petition, and the plaintiff excepted.

W. R. Hammond, for plaintiff in error. Goetchins & Chappell, for defendant in er

ror.

FISH, C. J. (after stating the facts). We think the plaintiff's petition clearly indicates that at the time of the occurrence of which he complains quarantine regulations were in force with reference to travelers seeking

to enter the city of Columbus, at least as to such travelers coming from Albany, Ga. The petition shows that, before the plaintiff purchased his ticket, he was put on notice of the existence of such regulations by the agent of the defendant to whom he applied to purchase the ticket, as the agent notified him "that, before purchasing the same, it would be necessary for him to have a health certificate." In order to procure such a certificate from the Albany health officer, the plaintiff had to produce evidence to show that he had not within the past 10 days been exposed to the infection of yellow fever, nor been in any infected or suspected locality. As the train upon which he was riding approached the city of Columbus, an officer, claiming to be a quarantine officer, approached him and asked him for a health certificate, and plaintiff exhibited the one which he had procured in Albany to such officer, who told plaintiff that he would not be allowed to ride on the train into Columbus, but must leave it at Sulphur Springs. These facts alleged in the petition clearly indicate the existence of quarantine regulations; and when to them are added the allegations that plaintiff's health certificate "entitled him to ride on said train into the city of Columbus,” and that it was the duty of "said officer to have passed him on said certificate into the city of Columbus," it seems impossible to fairly construe this petition without reaching the conclusion that there were such regulations in force relative to persons traveling from Albany to Columbus, Ga. The petition shows that, before the plaintiff purchased his ticket, he had every reason to suspect that ere he reached his journey's end he would encounter a quarantine officer, and that he relied both on his railroad ticket and his health certificate for his entry into the city of his destination. While in the amendment to the petition the plaintiff was careful to allege that he did not admit that the person who ordered him to leave the train at Sulphur Springs was what such person claimed to be, a quarantine officer, yet not only do the circumstances alleged in the petition strongly tend to indicate that this was true, but, as we have seen, the plaintiff himself alleges that it was the duty of "said officer to have passed him on said certificate into the city of Columbus." The allegation that it was the duty of said officer to have passed the plaintiff into the city of Columbus on the health certificate which he exhibited for the officer's inspection is equivalent to an admission that such officer was a quarantine officer. Unless he was a quarantine officer, how could it have been his duty to pass the plaintiff into the city of Columbus upon the evidence as to his right to enter that city afforded by the health certificate? The allegation here referred to was a direct admission that the person who ordered the plaintiff to leave the train was an "officer" of some kind, and an indirect admission that

he was a quarantine or health officer, else it could not have been his duty "to have passed" the plaintiff "into the city of Columbus" upon his health certificate. Against this clearly implied admission in the original petition, we have the allegation, in the amendment thereto, that plaintiff does not admit that the person who ordered him from the train was a quarantine officer; but he did not deny that such was the fact. The matter, then, stands thus: An officer, whose duty was such as to clearly indicate that he was a quarantine or health officer, ordered the plaintiff to leave the train, but the plaintiff neither expressly admits nor denies that such officer was a quarantine officer. As the rule is well established that pleadings are to be construed most strongly against the pleader and the allegation from which the admission is implied was not stricken from the original petition, the plaintiff could not escape its force and effect by merely alleging that he did not admit the natural and logical deduction from such allegation. While, by an amendment to the original petition, the plaintiff could have withdrawn an allegation previously made, he could not by an amendment place his own construction upon the facts which he had alleged.

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After all, however, it does not really make any difference by what particular name the officer who ordered the plaintiff to leave the train be called, if his duty was such as the plaintiff alleges it to have been. must have been a health officer, clothed with authority to pass upon the sufficiency of health certificates to entitle the holders thereof to enter the city of Columbus, otherwise it could not have been his duty to pass the plaintiff into that city upon the health certificate which he exhibited for inspection. If he was not clothed with such authority, he owed the plaintiff simply the negative duty of noninterference with his liberty, and could not have owed him the positive duty of passing him into the city of Columbus because he had exhibited a proper health certificate. A health officer who had authority to pass upon the sufficiency of plaintiff's health certificate to entitle him to enter Columbus had also, by necessary implication, authority to prevent him from entering such city, if the certificate, under the health regulations in force, was not such as to entitle him to do so. The case, then, resolves itself into this question: Was it the duty of the conductor to interfere to prevent a health officer, clothed with such authority, from compelling the plaintiff to leave the train before it reached the city of Columbus? Brunswick & Western Railroad Co. v. Ponder, 117 Ga. 63, 43 S. E. 430, 60 L. R. A. 713, 97 Am. St. Rep. 152, is a case which is directly in point here. There it was beld: "A railroad company is bound to use extraordinary diligence to protect a passenger while in transit from violence or injury by

third person; but, where the passenger is arrested by officers of the law, the company is under no duty to inquire into the legality of the arrest." In the present case the conductor was not bound to contest with the health officer the propriety or legality of the exercise of his power and authority in the particular instance; as the sufficiency of the health certificate was a question for the health officer, and not for the conductor. A railroad conductor is not required, for the protection of one of his passengers, to enter into a contest with, or put himself in opposition to, an officer of the law, who is apparently acting within the scope of his authority. Brunswick & Western R. Co. v. Ponder, supra; Duggan v. Baltimore & Ohio R. Co., 159 Pa. 248, 28 Atl. 182, 186, 39 Am. St. Rep. 672; Fetter on Carriers of Pas. § 101.

While the petition alleged that the conductor pointed the plaintiff out as a person to be ejected from the train, there is no averment that the conductor said why he pointed out the plaintiff to the health officer, or that he did anything whatever to indicate why he did so. As an allegation of fact, therefore, this statement simply amounts to an averment that the conductor pointed the plaintiff out to the officer who ordered him to leave the train; the alleged purpose of the conductor in pointing him out being a mere conclusion of the pleader. The conductor had a perfect right to point out to the health officer the passengers on the train who had boarded it at a given city or locality. For instance, if the health officer asked the conductor to indicate to him the passengers who had held tickets from Albany, and the conductor did so, he would not thereby render the railroad company responsible for the subsequent official conduct of such officer to such passengers, or any of them. He would be merely giving information to which the health officer, as a matter of public policy, was entitled. It was held in Owens v. Wilmington & Weldon Railroad Co., 126 N. C. 139, 35 S. E. 259, 78 Am. St. Rep. 642, that "a railroad company is not liable for the false arrest of a passenger on one of its trains where the conductor in charge of the train merely pointed out such passenger to a sheriff who had come to arrest him as a party suspected of a capital offense." In that case the court said: "The defendant was wholly ignorant of the occurrence, and its conductor did not originate the cause or instigate or participate in the arrest. It would be vain and unreasonable to require him to resist an officer of the law, or the law itself. Whether the officer had authority or probable cause for making the arrest is immaterial."

In the case with which we are dealing the court properly dismissed the petition upon demurrer, and the judgment is therefore affirmed. All the Justices concur.

SAVANNAH ELECTRIC CO. v. WHEELER et al.

(Supreme Court of Georgia. July 9, 1907.) 1. CORPORATIONS-LIABILITY FOR TORTS OF

AGENT.

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.] 2. SAME.

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.]

3. MASTER AND SERVANT-INJURIES TO THIRD PERSONS-LIABILITY OF MASTER.

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 can from the time it put him in charge up to and including the time of the death of Mrs. Wheel

er.

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 motormen 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

Ication 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 conduct of that business it was bound to use extraordinary diligence to protect the lives and persons of its passengers. Civ. Code 1895, § 2266. Who was discharging this duty for the master? The petition alleges the conductor was so engaged. He was taking up fares, not for himself, but for the company. In doing this he had to make change. He failed and refused to give proper change to a passenger, and, when it was asked for, assaulted the passenger with a pistol. The protection of the passenger, the collecting of fares, the giving of change, and dealing with passengers about these matters were all in the prosecution and within the scope of his employment. But it is said that when he conducted this dealing, not properly by giving change, but improperly by shooting at the passenger, that was his individual tort, and the company was not liable. Many authorities state the liability of a master for the tort of his servant substantially as it is codified in our Code. Expressions used in some reports and text-books, that a master is bound by the acts of his agent or servant in the scope of his agency and in furtherance of the master's business, or when the servant is acting for the benefit of the master, do not mean that the agent's act must be beneficial to the master or the latter is not bound. If any declare such a rule as that the master is bound by torts of the servant which benefit him, but not by any others, we cannot accept it as the rule in this state. In this matter, as in some others, there has been an evolution in the law, arising from the growth and change in corporate life and ac

tivity, and the better study of them. In Central Ry. Co. v. Brown, 113 Ga. 415, 38 S. E. 989, 84 Am. St. Rep. 250, it was held that: "A master is liable for the willful torts of his servant, committed in the course of the servant's employment, just as though the master had himself committed them. This rule applies as well where the master is a corporation as where he is a private individual. A railroad company is liable as a trespasser to a passenger for an unjustifiable assault made upon him by the conductor of the train; the conductor being engaged in the company's business and in the conduct thereof making such assault." And again: "Some of the courts seem at one time to have been inclined to hold that a master could not be held liable for the willful torts of his servant, because, it was said, if the servant through anger or malice committed an assault upon a person, he ceased for the time being to occupy the position of servant, and acted independently; that, inasmuch as he was not authorized to commit an assault, he did not represent the master in that act, but acted as an individual, the master therefore being not liable either in case or in trespass. This argument has long since been exploded. The theory that one may be a servant one minute, and the very next minute get angry, commit an assault, and in that act be not a servant, was too refined a distinction." In Western & Atlantic Railroad v. Turner, 72 Ga. 292, 53 Am. Rep. 842, it was held that, when a conductor maliciously assaulted one who was treating with him for passage, he was acting in the prosecution and scope of the company's business, and it was liable. And see Turner v. Atlantic Railroad, 69 Ga. 827. In Peeples v. Brunswick & Albany R. Co., 60 Ga. 282, where a declaration alleged that a conductor called a passenger out of the train of which he had charge and beat him, it was held to set out a cause of action, and was not subject to a general demurrer. In Craker v. Chicago & Northwestern Ry. Co., 36 Wis. 657, 17 Am. Rep. 510, it was said: "If one hire out his dog to guard sheep against wolves, and the dog sleeps while the wolf makes away with a sheep, the owner is liable; but, if the dog play wolf and devour the sheep himself, the owner is not liable. The bare statement of the proposition seems a reductio ad absurdum." In Gasway v. Atlanta & West Point R. Co., 58 Ga. 216, a railroad company was held liable for a willful tort of a baggage master and conductor committed upon one who was seeking to have his baggage checked. The trial judge charged to the effect that, unless the act of the defendant's agent tended to facilitate or promote the business for which the agent was employed, the company was not responsible, and refused to charge to the effect that the principal is responsible for the acts of its agents within the range of their employment. This court said: "Railroad companies are responsible to passengers for

the torts of the conductors and other servants of the company employed in running trains when such torts are committed in connection with the business intrusted to such servants and spring from or grow immediately out of such business." This case has been often cited, but never reversed. In Haehl v. Wabash Ry. Co., 119 Mo. 325, 24 S. W. 737, where a bridge watchman willfully struck and shot a trespasser on the bridge, it was held to be an act in the scope of his employment, and that the company was liable. In Ramsden v. Boston & Albany R. Co., 104 Mass. 117, 6 Am. Rep. 200, it was held that a railroad corporation was responsible for an assault and battery by its conductor upon a passenger in seizing or attempting to seize his property to enforce payment. of his fare. In the opinion, Gray, J., said: "If the act of the servant is within the general scope of his employment, the master is equally liable, whether the act is willful or merely negligent. The conductor of a railroad train, from the necessity of the case, represents the corporation in the control of the engine and cars, the regulation of the conduct of the passengers as well as of the subordinate servants of the corporation, and the collection of fares." In Barwick v. English JointStock Bank, L. R. 2 Ex. 259, 266, Willes, J., though using at one place the expression, "in the course of his master's business and for his master's benefit," evidently meaning merely in the discharge of the business intrusted to him, said (page 266): "It is true he has not authorized the particular act, but he has put the agent in his place to do that class of acts, and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of the master to place him in." See, also, Daniel v. Petersburg R. Co., 117 N. C. 592, 23 S. E. 327, 4 L. R. A. (N. S.) 485; Texas & Pacific Ry. Co. v. Williams, 62 Fed. 440, 10 C. C. A. 463; Cole v. Atlanta & West Point R. Co., 102 Ga. 474, 31 S. E. 107; Savannah Street R. Co. v. Bryan, 86 Ga. 312, 12 S. E. 307, 22 Am. St. Rep. 464; Patterson's Ry. Ac. L. 105; Higgins v. Southern Ry. Co., 98 Ga. 751, 25 S. E. 837; Southern Ry. Co. v. Chambers, 126 Ga. 404, 55 S. E. 37; Georgia R. Co. v. Richmond, 98 Ga. 495, 25 S. E. 565.

It is contended that there is a difference between an assault on a passenger, to whom the company owes a duty of protection, and a willful assault upon a stranger or mere passer having no relation with the company, and that the company is not liable for the latter. Cases of willful assaults by an employé upon a mere stranger are not in point. The petition alleges that the conductor did not shoot at the woman killed. He shot at the passenger, and, missing him, hit the woman. Moreover, a railroad company's liability for the willful torts of its agents acting in the scope of their business is not limited to torts on passengers. Some of

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