Atlantic Greyhound Cor. v. Berry , 66 Ga. App. 117 ( 1941 )

Whether or not the refusal of the driver of the first bus to allow the plaintiff to board the bus amounted to a refusal by the bus company, through the driver, to receive the plaintiff for transportation, the plaintiff afterwards undertook to obtain transportation on the other bus by sending the porter to the driver of the latter bus to inquire whether the plaintiff could be transported on the latter bus. The plaintiff's case must stand or fall on whether the bus company refused to transport him on the second bus. Since the evidence was undisputed, in both the testimony of the driver of the second bus and that of the porter, that the driver of the second bus stated only to the porter that there was standing room only on the second bus, there appeared no refusal by the driver of the second bus to accept the plaintiff for transportation, unless the porter, when seeking the required information from the driver of the second bus and reporting back to the plaintiff what the driver of the second bus had stated, was the agent of the bus company to convey such information to the plaintiff. If the porter was such agent, the testimony of the plaintiff to the effect that the porter stated to the plaintiff that the driver of the second bus had stated that he could not accept the plaintiff for transportation (which the porter denied), would have authorized the jury to find that the bus company, in a communication to the plaintiff through its agent the porter, had refused to transport the plaintiff.

The burden of proof was on the plaintiff to establish the agency of the porter as that of the bus company, with authority to speak for the bus company as respected the matter whether or not the bus company could accept the plaintiff for transportation. I am of the opinion that the evidence was not sufficient to establish such agency. The evidence as to the duties and authority of the porter was to the effect that he was employed by the station or ticket agent of the bus company as a delivery boy in connection with the business of this agent in the operation of a store, and that the porter's duties were to meet all the buses, tote suitcases, and to "try to be courteous to the passengers that board and light there;" and that the driver of the first bus had sent suitcases "in" by the porter, and that the porter did not help passengers board the buses, but had brought suitcases out to the bus. While such evidence might be sufficient to authorize a finding that the porter, in toting suitcases for passengers, was, in so doing, acting as agent for the bus company, it was not inferable from the evidence as to such duties by the porter that he had any authority as agent of the bus company to bind the bus company by any representation to a passenger as to the ability or willingness of the bus company to receive him for transportation. There was no evidence whatsoever that this porter had been accustomed, when discharging his duties in toting baggage and carrying it to the buses for passengers, to expedite the departure of passengers by giving them information as to what buses to board and what buses could carry them, as is sometimes done by the ordinary "red caps" at railroad terminals, who may or may not, when so doing, be acting within the scope of their duties as agents of the railroad company. As respects the duties of "red caps" in handling baggage for passengers, see Booker v. Pennsylvania Railroad Co., 82 Pa. Supr. 588; Franklin v. Southern Pacific Railroad Co., 203 Cal. 680 (265 P. 936, 59, A.L.R. 118, 126); Strickland v. Missouri Pacific Trans. Co.,195 Ark. 950 (115 S.W.2d 830); Soanes v. London c. Ry., 88 L. J. R. (K. B.) 524; 10 Am. Jur. 465.

I concur in the conclusion that the evidence was insufficient to support the verdict for the plaintiff.