410

filed an original proceeding in the nature of a bill to reform the decree, or at least should have waited until there was some proceeding instituted to enforce the decree, and then set up the matters now relied on, in answer to an attachment for contempt. None of the demurrers raised any question as to the procedure followed. The special demurrer simply alleged that certain paragraphs of the petition were defective because they did not set forth documents referred to therein, and the general demurrer set up merely that the plaintiff was not entitled to the relief sought, for the various reasons set forth in the demurrer. It is said that as the order of the judge refusing to grant the relief prayed for was general in its nature, it not appearing therefrom upon what ground the court based its judgment, if any ground taken in either demurrer was a sufficient reason for refusing the relief, the judgment should be affirmed. This is unquestionably the correct rule; but we find no sufficient reason set forth in either of the demurrers for refusing that prayer of the petition, which asked that an order be entered declaring that on account of the new condition of affairs the decree, though proper at the time it was rendered, should no longer be enforced; and we will not now pass upon the question whether the proper procedure was followed. Speaking for myself, I think the procedure followed was not only proper but that the practice is to be commended. The company was apparently in contempt; the decree required the removal of the obstructions; the company continued to maintain them. Instead of waiting for an attachment for contempt to be issued, it comes forward in a respectful application and shows to the court a state of facts which would relieve it from the apparent contempt. The decree was no longer operative upon it, and it was entitled to have entered upon the records of the court an order to this effect. Why should it "stand in jeopardy every hour"? A court of equity is always open for the purpose of proceeding upon mere motion to the enforcement of its orders by attachments for contempt, and I see no reason why it should not be open for one who is apparently in contempt and who comes before it to show his willingness to abide its orders but that at the same time, under the existing condition of affairs, his conduct, which at one time might have been a contempt of the court, was no longer such. Judgment reversed.

All the justices concur.

The Municipal Authorities of a city have no inherent power to vacate a street therein or any part thereof: Texarkana v. Leach, 66 Ark. 40, 74 Am. St. Rep. 68. The legislature, however, may, by virtue of its plenary power, vacate or discontinue streets or highways, or authorize municipal corporations to do so: See the note to Heinrich v. St. Louis, 46 Am. St. Rep. 493. And when a street is vacated, the owners of the soil are restored to their original dominion over it: See the monographic notes to Wright v. Austin, 101 Am. St. Rep. 117; Heinrich v. St. Louis, 46 Am. St. Rep. 495. Compare Kilpatrick v. Baltimore, 81 Md. 179, 48 Am. St. Rep. 509; Lindsay v. Omaha, 30 Neb. 512, 27 Am. St. Rep. 415. As to the right of property owners to damages upon the vacation of a street, see the note to Heinrich v. St. Louis, 46 Am. St. Rep. 496-498; Chicago v. Burcky, 158 Ill. 103, 49 Am. St. Rep. 142.

CENTRAL OF GEORGIA RAILWAY COMPANY V.

MORRIS.

[121 Ga. 484, 49 S. E. 606.]

MASTER AND SERVANT-Assault by Servant.-A railroad company is not liable for an assault and battery committed upon an intruder on its premises by its agent or servant, who, at the time, is acting wholly outside of his general authority and beyond the scope of his employment. (p. 165.)

J. Branham and McHenry & Maddox, for the plaintiff in

error.

Seaborn & Wright, for the defendant in error.

485 EVANS, J. The error assigned in the bill of exceptions sued out in this case is that the court below overruled a demurrer to the plaintiff's petition as amended at the trial. The allegations of fact upon which the plaintiff sought to recover were substantially as follows: On October 5, 1902, plaintiff went onto the platform of defendant's freight depot at the request and invitation of a policeman of the city of Rome, for the purpose of pointing out to the policeman a man in the company's employ whom the policeman desired to arrest for a violation of an ordinance of that city. While standing on the platform, the plaintiff was approached by one J. C. O'Dell, "an employé of defendant in the capacity of trainmaster," who said to him: "I told you not to come around here again bothering my men," or words of similar import, meaning that he had told plaintiff not to bother the employés of the defendant who were under his direction and control, and implying that plaintiff was at the time

bothering an employé who was under his control and direction. After so addressing plaintiff, O'Dell violently assaulted him and threw him off the platform into the street, a distance of four fect, in the presence of many bystanders and in a place fully exposed to view by the public, and O'Dell at the same time cursed and abused plaintiff. The said "J. C. O'Dell was an employé of defendant in capacity of trainmaster, as aforesaid, whose duty was to exercise a general supervision over all trainmen and operators, and to report all neglect of duty on the part of employés." The assault upon plaintiff was made because he had come there for the purpose of pointing out to the policeman an employé and trainman who was under the control of O'Dell, and "said O'Dell was acting in his capacity as trainmaster, as aforesaid, and not in his individual capacity." The plaintiff was greatly embarrassed and humiliated by the unlawful and violent battery committed upon him, and his feelings were thereby wounded; and he asks for two thousand dollars damages.

It is unnecessary to set forth the special grounds of the defendant's demurrer; for, in the view we take of the case, the general 486 demurrer to the plaintiff's petition should have been sustained. The plaintiff did not go upon the premises of the company at its invitation, express or implied, but upon the invitation of a policeman. There is no pretense that the plaintiff had any business to transact with the company. In this respect the case differs very materially from those of Christian v. Columbus etc. Ry. Co., 79 Ga. 460, 7 S. E. 216; Columbus etc. Ry. Co. v. Christian, 97 Ga. 56, 25 S. E. 411, and Georgia R. R. etc. Co. v. Richmond, 98 Ga. 495, 25 S. E. 565. Accordingly, the company owed to the plaintiff no affirmative duty of protection against an unprovoked assault by one of its employés, and cannot be held liable in damages for a battery committed by an agent or employé who acted outside of the scope of his authority and upon his individual responsibility: Georgia R. R. etc. Co. v. Wood, 94 Ga. 124, 47 Am. St. Rep. 146, 21 S. E. 288; Lynch v. Florida etc. Ry. Co., 113 Ga. 1105, 39 S. E. 411, 54 L. R. A. 810. The plaintiff was a mere intruder, and the company had a right to insist upon his departure. If he persisted in remaining, the company could lawfully use such force as was reasonably necessary to eject him from its premises: Hammond v. Hightower 82 Ga. 290, 9 S. E. 1101. This right could be exercised by any agent to whom the company had delegated the power to exercise it, the company being responsible, of course, for any abuse of such power by its agent. But it does not

appear that O'Dell, the employé who assaulted the plaintiff, was an agent to whom the company had delegated its right to eject intruders from its premises. We are informed by the plaintiff's petition that O'Dell was assuming to act, not in his individual capacity, but in his capacity as trainmaster. His official designation does not warrant the inference that he was placed by the company in charge of its premises, and had either express or implied power to determine who were intruders, and to protect the company's interests by ejecting persons who he believed came there for the purpose of bothering the employés placed under his control and direction. Therefore, that he assumed to act in his official capacity, rather than as an individual, cannot be regarded as sufficient to render the company liable for his actions. The important thing to be considered, and that upon which the right of the plaintiff to recover depends, is whether or not O'Dell acted within the scope of the business for the transaction of which he was employed. As to this all-important matter, the plaintiff simply alleges that the trainmaster's "duty was to exercise a general supervision over all trainmen and operators, 487 and to report all neglect of duty on the part of employés." There is in the petition no hint that O'Dell was held out by the company as an agent authorized to deal in its behalf with the general public in any manner whatsoever, or to perform for it any service save that of exercising a general supervision over a particular branch of its internal affairs. The company had a right to thus limit the field of his usefulness; it was not bound to appoint him its "casual ejector." That it ever, in point of fact, clothed him with authority to take any action with respect to persons coming upon its premises, at or without its invitation, does not appear. The plaintiff's petition is lacking in one of the essential ingredients necessary to a cause of action against the defendant company for the tort complained of, and should have been dismissed on general demurrer.

Judgment reversed.

All the justices concur.

An Employer is not ordinarily answerable for assaults committed by his employé when acting beyond the scope of his authority: Rahmel v. Lehndorff, 142 Cal. 681, 100 Am. St. Rep. 154; McDermott v. American Brewing Co., 105 La. 124, 83 Am. St. Rep. 225. As to whether this rule applies where the purpose of the employé's act is the protection of his employer's property, see Guille v. Campbell, 200 Pa. St. 119, 86 Am. St. Rep. 705; Brown v. Boston Ice Co., 178 Mass. 108, 86 Am. St. Rep. 469; Holler v. Ross, 68 N. J. L. 324, 96 Am. St. Rep. 546. It does not apply where the relation between the

employer and the injured person is that of carrier and passenger: Citizens' St. Ry. Co. v. Clark, 33 Ind. App. 190, post, p. 249; Birmingham Ry. etc. Co. v. Baird, 130 Ala. 334, 89 Am. St. Rep. 43, and cases cited in the cross-reference note thereto. Compare Central of Georgia etc. Ry. Co. v. Motes, 117 Ga. 923, 97 Am. St. Rep. 223; Georgia R. R. etc. Co. v. Hopkins, 108 Ga. 324, 75 Am. St. Rep. 39; Little Miami R. R. Co. v. Wetmore, 19 Ohio St. 110, 2 Am. Rep. 373.

FITTS v. CITY OF ATLANTA.

[121 Ga. 567, 49 S. E. 793.]

CONSTITUTIONAL LAW-Municipal Ordinances-Freedom of Speech.-A municipal ordinance declaring it unlawful to hold public meetings in the streets without the consent of the municipal authorities is not unconstitutional, either as interfering with the liberty of speech or as making an arbitrary discrimination in favor of some persons, nor as an unreasonable and oppressive exercise of the police power, nor because the city has no legal power to enact it. (p. 176.)

TRIAL-Continuance.-If a person violates a municipal ordinance for the previously announced purpose of testing its constitutionality, it is not error to refuse to continue his case to enable his counsel to have time to investigate the question involved. (p. 176.)

TRIAL-Violation of Ordinance-Evidence.-If a person on trial for the violation by him of a municipal ordinance seeks to attack the conduct of the city authorities, on the ground that in denying him a permit they acted arbitrarily and capriciously, it is competent to show his previous conduct, and the circumstances under which such authorities exercised the authority vested in them. (p. 176.)

A. Field and A. M. Brand, for the plaintiff in error.

J. L. Mayson and W. P. Hill, for the defendant in error.

568 FISH, P. J. J. L. Fitts was adjudged guilty, in the recorder's court of the city of Atlanta, of violating a certain municipal ordinance, and sentence was imposed on him therefor. He took the case by certiorari to the superior court, where, upon the hearing, the certiorari was overruled. Thereupon he sued out a writ of error to this court. Our learned brother Lumpkin, who presided in the superior court, rendered an opinion in the case, which comes up in the record and which is as follows:

"This case presents a contest of strength between 'Professor' Fitts and a municipal ordinance of the city of Atlanta. The two are diametrically opposed to each other, and one must yield.