Wolfe v. Georgia Railway & Electric Co.

Fish, C. J. (After stating the ease.) ■ Plaintiff bases his claim to recover upon an alleged violation of the well-established rule, that' [696] it is the duty of a railroad company to protect a passenger from injury, violence, insult, and ill treatment at the hands of the servants of the carrier, who are in charge of or connected in any way with the carriage in which the passenger is being transported. Savannah Ry. Co. v. Quo, 103 Ga. 125; Georgia Ry. & El. Co. v. Balter, 120 Ga. 391, and cit.; Hutch. Car. §595-6; Thorne. Neg. §3186; Booth on Street Railways, §682. The question sought to be made by the petition is, whether it is an insult, for which an action lies against ■a street railway company, without an allegation of special damages, for a conductor on one of its cars, while endeavoring to comply with the statute requiring him as far as practicable to separate white passengers from colored passengers, to negligently mistake a white passenger for a colored one, and, in the presence and hearing of other passengers, to inform him that he must be seated in that portion of the car set apart for negro passengers. As to whether it is actionable per se to call a white man a negro, or to publish .him as such, see Eden v. Legare, 1 Bay (S. Car.), 171; King v. Wood, 1 Nott & McCord (S. C.); 184; Barrett v. Jarvis, Tappan (Ohio), 244; Johnson v. Brown, 4 Cranch (C. C.), 235; Scott v. Peebles, 2 Smedes & M. (Miss.) 546; McDowell v. Bowles, 8 Jones L. (N. C.) 184; Spotorno v. Fourishon, 40 La. Ann. 423; Tipton v. Times-Democrat Pub. Co., 104 La. Ann. 141. However interesting the question sought to be made in the present case may be, and whatever opinion we may entertain in regard to it, we are not authorized, under the view entertained by a majority of the court, to decide it, for the reason that the petition fails to allege that the plaintiff is a white man. Such an allegation was, of course, essential to maintain the contention that he was insulted by the language used by the conductor. It is true that the petition alleged, ¿*that the effect of said colloquy was to create on the minds of strangers that petitioner had colored blood in his veins, and that he was attempting to pass as a white person; that the effect of said colloquy on persons who knew petitioner was that as a white person he had been associating with negroes.” Merely alleging the effect the colloquy created on the minds of others is very far from alleging plaintiff to be a white man, as such effect might have been produced though the plaintiff may not be a white man. The .allegation as to the effect of the colloquy upon strangers does not show, or clearly indicate, that the plaintiff is a white man, that is, a mem [697] ber of the Caucasian race. The plaintiff might be a mulatto and, ■still the effect of the conversation upon the minds of persons to whom he was a stranger might be that he had colored blood in his veins, and that he was attempting to pass as a white person. The allegation “that the effect of said colloquy on persons who knew petitioner was that as a white person he had been associating with negroes,” simply amounts to an allegation that the effect of the ■colloquy upon such persons was that the plaintiff had been associating with negroes, as a white person. A given conversation might produce the effect upon the minds of persons who knew a mulatto, ■or a Chinaman, that he, as a white person, had been associating with negroes, that is, that he had been associating with negroes, as a white person, or, in other words, posing and passing among ne-groes as a member of the Caucasian race. The general demurrer ■assailed every substantial imperfection in the petition, and as the petition was defective in a substantial particular, the demurrer was properly sustained. Judgment affirmed. All the Justices concur, except Beck, J., not ■presiding, and