Opinion
34027.
DECIDED MAY 6, 1952.
Action for damages; from Eastman City Court — Judge Franklin. February 12, 1952.
A. Russell Ross, for plaintiff.
Will Ed. Smith, Martin, Snow Grant, for defendants.
The petition as amended failed to allege facts sufficient to be submitted to a jury on the alleged liability of the two defendants, and it was proper to sustain the general demurrers and dismiss the petition.
DECIDED MAY 6, 1952.
Otto K. Scholwin filed suit in the City Court of Eastman against J. T. Wilbanks, of Dodge County, and The Southeastern Greyhound Lines, a non-resident corporation, with a place of business and agent in said county, in which suit the plaintiff sought to recover damages on account of the alleged wrongful conduct of the defendants as joint wrongdoers. The plaintiff set up that the bus line was a common carrier of passengers, operating under a Georgia Public Service Commission certificate of public convenience, in both inter- and intrastate commerce, and that the defendants have injured and damaged the plaintiff in the sum of $50,000 by reason of the facts hereinafter set out. The plaintiff alleged: that, on February 25, 1951, the defendant carrier owned and operated a bus line with motor buses running from Atlanta South through Macon, Eastman, and other points south, and on to Miami, Florida, carrying passengers for hire; that, in connection therewith, it operated a bus station and place of business in Eastman, where passengers arriving from other points alighted, and where the public was invited to come and board its busses for transportation to other points along its routes, and the plaintiff was invited to come and do business with the carrier; that on said date the defendant Wilbanks was the agent of the defendant carrier at Eastman and was in charge of its bus station and place of business there, and acting within the scope of his employment and agency in the sale of bus tickets and acceptance of fares and passengers for said carrier; that, on said date between 7:30 and 8 p. m., the plaintiff went to this bus station and place of business of said carrier in Eastman and purchased a ticket from there to Miami, Florida, from the defendant Wilbanks, agent of the defendant bus line, and paid him the full fare demanded, and the plaintiff became a passenger of the carrier, and the relation of passenger and carrier was then and there created; that, shortly thereafter and while the plaintiff was lawfully upon the premises and in the bus station and waiting room, the defendant Wilbanks telephoned the sheriff of the county and demanded that the sheriff arrest the plaintiff for the alleged offenses of wilful trespass and malicious mischief, and then and there accused the plaintiff of being guilty of said offenses; that the plaintiff was not guilty thereof and had committed no crime nor violated any law and had conducted himself in an orderly manner; that the act of Wilbanks in accusing the plaintiff of said offenses and calling the sheriff and demanding the plaintiff's arrest, caused the plaintiff to be frightened, insulted, and mortified, his sensibilities were shocked, and he became extremely nervous and so sick and weak he had to leave the bus station and go back to his boarding house in an effort to alleviate the mental pain and anguish thereby produced; that no more than five minutes after the plaintiff left the bus station, the sheriff arrived and was instructed by the defendant Wilbanks to "run petitioner down, arrest him, and collect from him the sum of $34 for costs of his arrest, require him to donate $10 to the First Baptist Church of Eastman in the name of J. T. Wilbanks, and upon his failure or refusal to do so, that petitioner be locked up"; that the sheriff proceeded to arrest the plaintiff as instructed by Wilbanks, and the plaintiff, not being of the Baptist faith, did not want to be compelled to donate to that church and declined to do so, and, being fully conscious that he had committed no crime, declined to pay the costs of the criminal proceedings and was thereupon compelled to "post a $50 cash bond with said sheriff" for his personal appearance in court to answer to the charges made by said Wilbanks to avoid being put in the common jail of Dodge County; that the plaintiff was not guilty of said offenses, and this the defendant Wilbanks well knew and knew that the acts of Wilbanks herein complained of were "done wilfully, wantonly, maliciously and without probable cause," and thereafter on July 11, 1950, the plaintiff was acquitted of said charges; that the defendant carrier and its agent Wilbanks were under the duty to protect the plaintiff as a passenger of said carrier from insult and mortification, and not to insult him and accuse him of criminal offenses of which he was not guilty, and this is brought against them, "not for malicious prosecution or false imprisonment, but for a breach of duty the defendants owed the petitioner as a passenger of said carrier, and the injuries and damages flowing therefrom, and the said J. T. Wilbanks is made a party defendant, as being a joint tortfeasor"; and that, because of the acts of Wilbanks, plaintiff was hindered and delayed and was prevented from catching the bus on which he intended to leave Eastman for his home in Miami, Florida, and for which he had a ticket, and later obtained other transportation, and that all of the acts of the said Wilbanks hereinbefore set out, were wilful, wanton, and unjustified, and there being aggravating circumstances in said acts, petitioner sues for punitive damages as compensation for his wounded feelings as well as general damages."
The defendant carrier demurred to the petition generally as setting forth no cause of action against it, because it affirmatively appears that Wilbanks was not acting as its agent in the alleged wrong set out in the petition; and because it affirmatively appears that the plaintiff has sustained no damages which may be recovered in this action. Said defendant further specifically demurred to the various paragraphs of the petition. The defendant Wilbanks also demurred generally to the petition as not setting out a cause of action against either of the defendants, and because the facts alleged are insufficient in law to constitute petitioner a passenger, or to create this defendant as an agent of the defendant carrier. This defendant also demurred specially to various paragraphs of the petition.
The plaintiff amended his petition by setting up that he presented himself to the defendant Wilbanks, in charge of selling tickets for the carrier, and in an orderly and courteous manner informed Wilbanks that he desired a ticket on one of the defendant carrier's busses, scheduled to arrive in Eastman in about 20 minutes and same was sold to him, and he became a passenger under the name and charge of the defendant carrier. This amendment was allowed subject to objection on September 21, 1951. Thereafter, on October 1, 1951, subject to demurrer, the plaintiff again amended his petition and alleged that he does not know why the defendant Wilbanks acted towards him as set out in the petition, unless Wilbanks was angry with the plaintiff because on that morning an automobile driven by the plaintiff bumped into an old tub near the building where bus tickets were sold and passengers board buses and alight therefrom, which tub had an azalea plant in same belonging to Wilbanks, and this was an accident on the plaintiff's part; and that the plaintiff thought matters had been adjusted satisfactorily, and Wilbanks did not display any anger until after the plaintiff had obtained his ticket, "nor until after the plaintiff had been accepted and become a passenger." The defendant Wilbanks renewed his general and special demurrers. The defendant carrier renewed its general demurrers to the petition as amended and also its special demurrers thereto, and because "it now affirmatively appears that the plaintiff was not a passenger at the time said Wilbanks phoned the sheriff and requested him to come out and arrest the plaintiff," and because "it affirmatively appears that this defendant has breached no duty to the plaintiff."
On February 12, 1952, the trial court sustained the general demurrers of the two defendants to the petition as amended and dismissed the same as follows: "This conclusion is reached because in the judgment of this court, in the light of the facts as alleged in the second amendment filed by the plaintiff, there was so much time between the time the specific acts complained about and the time of the plaintiff's return to the bus station to purchase his ticket for bus transportation over defendant's line until it makes it too speculative and remote to have given him any right of action. Also, in the light of the plaintiff's pleading in paragraph 16 of his original petition, he specially disclaims any right of action for `malicious prosecution or false imprisonment,' which eliminates the defendant, J. T. Wilbanks, for any of his acts personally, disconnected with the defendant, The Southeast Greyhound Lines."
To the judgment sustaining said general demurrers of the defendants, the plaintiff excepts to this court.
The petition as amended does not entitle the plaintiff to the recovery of the damages sought. While a carrier owes to his passenger the duty of protecting him from insult, injury, and mortification, the carrier is not liable where the passenger is arrested by a sheriff under a valid process. See Bright v. Central of Ga. Ry. Co., 12 Ga. App. 364 ( 77 S.E. 372); Baldwin v. Seaboard Air Line Ry., 128 Ga. 567 ( 58 S.E. 35); Brunswick W. R. Co. v. Ponder, 117 Ga. 63 ( 43 S.E. 430, 60 L.R.A. 713, 97 Am. St. R. 152). The fact that the ticket agent of the defendant carrier at Eastman had a personal grievance against the plaintiff and, after the plaintiff had purchased his ticket to Miami, telephoned the sheriff as to the whereabouts of the plaintiff, so that the sheriff could serve a warrant taken out by the ticket agent against the plaintiff earlier that day, does not render the carrier liable where the act of the agent in calling the sheriff was purely a personal one, and the carrier had no interest therein, one way or the other.
The plaintiff alleges that the defendant Wilbanks acted wilfully and wantonly, and that the plaintiff is entitled to punitive damages. The fact that the plaintiff alleges that the defendant Wilbanks had no reason to cause the plaintiff's arrest, and acted wantonly and wilfully, does not alter the case. The plaintiff's right of action, if any he had, for false imprisonment or malicious prosecution, for an arrest under an apparently valid warrant but illegally obtained, and where the plaintiff has been acquitted of the charges against him, was disclaimed by the plaintiff in paragraph 16 of the petition. He states that he is not bringing a suit for malicious prosecution, but is bringing an action because the defendant carrier and the defendant Wilbanks, as agent, did not protect him when he was a passenger, and that they failed in the performance of their duty towards him. Causing the injury or damage alleged. We think that the petition fails to show any right to recover against the carrier or its agent for wantonness and wilfulness, and that the plaintiff's right of action, if any, would be under the Code for malicious prosecution or for false imprisonment. This being so, and the plaintiff's right to recover for malicious prosecution being waived and expressly disclaimed in the present suit, the petition as a whole failed to show any right of action in the plaintiff against the defendant Wilbanks; and the court properly dismissed the petition on the general demurrers of the two defendants.
Judgment affirmed. Townsend and Carlisle, JJ., concur.