Binder v. Georgia Railway & Electric Co.

Hill, C. J. (After stating the foregoing facts.) 1. We think the general grounds of the motion for a new trial are without merit. The trial judge fully instructed the jury on the principles of law pertinent to the issues, as laid down in the case of Mason v. N., C. & St. L. Ry., 135 Ga. 741 (70 S. E. 225, 33 L. R. A. (N. S.) 280). Of course, the general principle is well recognized that carriers are under a duty to exercise extraordinary diligence to protect passengers not only from the insults of the carrier’s servants, but from the insults of fellow passengers. The jury were authorized to believe in this case, under the evidence of the motorman, that this passenger was not entitled to the protection of the company; for, if the evidence of the motorman is the truth of the transaction, the passenger had forfeited this right of protection by his abusive language and opprobrious words used to the motorman. The evidence preponderates against the motorman’s testimony, yet the matter was for the exclusive determination of the jury, and if they believed the passenger did use opprobrious words to the motorman — the words to which the motorman testified, such words were sufficient to justify him in denouncing the statement made by the passenger, and might have justified an assault and battery (though the evidence does not show that the motorman [384] made an assault and battery, or even an assault, upon the passenger) . A passenger has no license, because of his relation as passenger, to use opprobrious words and abusive language, without provocation, to an employee of the company in charge of the car; and if he does so, the employee has the right, within proper limitations, to protect himself and to resent the language of the passenger. Any provocation or aggravation by a passenger which will not fully justify the servant in his resentment will not free the master from liability. An act which may not amount to a justification may yet amount to a mitigation, and, if the mitigating circumstances be strong enough or the injury small, may furnish a basis only for recovery of nominal damages. But, according to the evidence of the motorman in this case, the passenger was wholly unjustified in using the opprobrious words and abusive language, and the motorman became thus entirely justified in his conduct, and such conduct could not be the basis of liability against the master. Mason v. N., C. & St. L. Ry., supra, and cases therein cited. 3. Even if the refusal of the judge to allow the plaintiff to prove the worldly circumstances of the defendant company was erroneous, the error was immaterial and harmless in view of the verdict for the defendant. The jury never reached the question of the measure of damages, for they found a verdict generally for the defendant, and this question is merely a moot question here. McBride v. Georgia Ry. & El. Co., 125 Ga. 515 (54 S. E. 674). 3. There was no error in the refusal of the judge to permit the plaintiff to show that subsequently to the tort complained of, the offending motorman, whenever he would see the plaintiff riding on his car, would shake his fist and clinch his teeth at the plaintiff. This subsequent conduct might furnish cause for a separate suit against the company, and might be construed to be an insult, to the passenger, but it certainly was not relevant to the conduct made the basis of the present suit. The case of Gasway v. A. & W. P. R. Co., 58 Ga. 216, relied upon by the plaintiffs in error, is not applicable to the questions made in this record. In that ease the company retained the offending servant after knowledge of a tort for which the company was liable, and the subsequent conduct was pertinent to the point of ratification of the tort by the principal. 4. There was clearly no error in refusing to permit the introduction in evidence of an extract from a letter written by the [385] plaintiff’s attorney to the defendant. This extract illustrates no question in the record, was entirely irrelevant and immaterial, and was self-serving on the part of the plaintiff. 5. The remaining grounds of the motion for a new trial present in different form the one point that the defendant-could not prove justification of the conduct of the motorman and thus escape liability, without filing a formal plea of justification; that the proof was not admissible under the plea of the general issue. The rule is well settled as to torts that justification must be set up affirmatively and by a special, formal plea. Ratteree v. Chapman, 79 Ga. 574, 579 (4 S. E. 684). Pleas of justification refer to such torts as malicious prosecution, assault and battery, libel and slander, and the like. Central Ry. Co. v. Morgan, 110 Ga. 168, 171 (35 S. E. 345). A plea of justification admits the tort and sets up facts of justification, and under such a plea the defendant has the affirmative and assumes the burden of proving justification. In the present case the gravamen of the complaint is not primarily liability for the tort of the motorman, but liability for the neglect of thé defendant company to discharge a public duty in the protection of its passengers from the 'insults of its employees, a duty which the law imposes upon it. In other words, the suit is based not on the wrong of the motorman in insulting the passenger, but upon the failure of the carrier to protect the passenger from the insult. A petition which did not allege this failure of the carrier to perform its duty would be subject to demurrer." Now, when the carrier denies by a plea the essential fact upon which the claim for damages is predicated, to wit, the failure to protect its passengers from insult, it can prove under that general denial any fact-which under the law disproves its liability; and it effectually escapes liability by proof that it did not fail in the performance of this obligation. Proof that the offending servant was justified in the use of the language complained of, of the insult given, or the unlawful act, necessarily proves that the carrier has not failed in the performance of its duty to the passenger. It would seem to be logically and legally impossible to file a plea of justification when the gist of the action is a neglect of duty. If the defendant admits the allegations of negligence it necessarily admits not only prima facie liability, but ultimate liability. In other words, it can not justify its negligence in failing to perform its duty to the passenger, for [386] the law authorizes no such defense; and if it admits its own negligence in this respect, it can only defend by showing either that the plaintiff’s negligence was the proximate cause of the injury, or that the plaintiff, by the exercise of ordinary care, could have known of the defendant’s negligence and avoided its consequences; and either of these defenses can be made under the general denial. We think this view is not only in consonance with sound reason, but is clearly deducible from decisions of the Supreme Court. In Central Ry. Co. v. Morgan, supra, it was held that a plea of justification could not be made to a suit for injury to property by the running of a railroad train, and that all the evidence tending to show justification was admissible under a plea of the general issue. In Chapman v. A. & W. P. R., 74 Ga. 547, it was said that to constitute a plea of justification, the facts alleged must be such as are not admissible under the plea of the general, issue. Horton v. Pintchunck, 110 Ga. 355, 358 (35 S. E. 663); Brunswick & Western R. Co. v. Wiggins, 113 Ga. 842, 846 (39 S. E. 551, 61 L. R. A. 513); Cole v. A. & W. P. R. Co., 102 Ga. 474, 476 (31 S. E. 107). We conclude that the ease was fairly tried; and while the evidence preponderates against the verdict, there was some evidence to support it; and as no error of law of a prejudicial character is shown by the record, this court will not disturb the judgment refusing another trial. Judgment affirmed.