Henderson v. Atlanta Transit System, Inc.

210 S.E.2d 845, 133 Ga. App. 354, 1974 Ga. App. LEXIS 1070

• Court: Court of Appeals of Georgia
• Decided: November 18, 1974
• Docket: 49684
• Status: Published

Opinions

Pannell, Presiding Judge.

H. L. Henderson brought a complaint against the Atlanta Transit System, Inc., seeking recovery of general and punitive damages against defendant based on alleged conduct of a bus driver of defendant who allegedly "committed tortious misconduct against plaintiff as specified in plaintiff’s letter to defendant” of a certain date and that "plaintiff was subjected to opprobrious, insulting and abusive words by said bus operator employed by the defendant which humiliated, mortified and wounded the feelings of the plaintiff. Such words were calculated to charge the plaintiff with employing sinister practices to avoid paying the proper fares for the transportation involved and sought, whereas, the transfer privilege which was sought having been exercised by the plaintiff upon numerous occasions before and after the said incident...” The material parts of the letter, attached to the complaint by amendment, read as follows:

"Yesterday morning I was out on North Highland Avenue, N. E. without the use of an operable automobile and boarded a bus on the Noble line for return to my residence; I paid my fare and the transfer fee and was issued a transfer with the expiration time of 12:40 p.m. shown. At approximately 12:30 p.m. at the corner of Peachtree and Ellis Streets I boarded your bus numbered 829 bearing the 'Oglethorpe via West Peachtree’ designation and tendered my transfer from the Noble line and followed my long-time practice of advising the operator that I would transfer to the Ridgewood-West Wesley feeder at Peachtree Battle Avenue and would want a transfer upon my leaving the vehicle at the indicated transfer point. The operator advised me that the feeder bus was not then operating and would not resume operation until after he would have gone off duty; that he would not issue me a transfer and that I could take back the Noble line transfer I had given him and use it later on a bus out of Peachtree Battle Avenue; whereupon, I pointed out that the Noble transfer would expire within a few minutes and showed him a printed schedule for the feeder line and advised him of my longtime familiarity with the procedure of transfer to the feeder; I showed him that the first feeder was scheduled to depart from the E. Rivers School at 2:35 p.m., and that I would take it after a layover at Peachtree Battle as I had done numerous times in the past.

"He very adamantly again stated that he would not issue me a transfer upon my getting off at Peachtree Battle Avenue, and in answer to my inquiry as to how I could employ the feeder to get over to Moores Mill Road he snapped that I would have to pay another fare on the feeder; that I had exhausted my transfer privileges. Finding that I could not reason with him and that his name was not posted above his seat I asked him for his name in order that I might report his abrupt departure from the long-time experience I had had in the particulars, and he said I did not need his name but could report that it was on bus number 829. After I had sat down at the head of the lengthwise seat opposite his seat he called out to me loudly that he did not want any argument of any kind and I could report whatever I wanted to; I had ceased conversation with him when he made the exclamation and was making entries in a pocket diary regarding the incident.”

In a request for admissions served by the plaintiff upon the defendant, it was admitted that generally passengers are entitled to transfers to another route and that plaintiff did not receive the transfer requested on the occasion in question. A motion for summary judgment on all issues in the case was made by the defendant and sustained by the trial judge. Held:

1. To entitle the defendant to a summary judgment the undisputed facts as disclosed by the pleadings and evidence must negate at least one essential element entitling plaintiff to recovery and under every theory fairly drawn from the pleadings and evidence (Werbin & Tenenbaum v. Heard, 121 Ga. App. 147 (2, 3) (173 SE2d 114); Scales v. Peevy, 103 Ga. App. 42, 46, (118 SE2d 193); Calhoun v. Eaves, 114 Ga. App. 756, 759 (152 SE2d 805); Saunders v. Vickers, 116 Ga. App. 733, 734 (2) (158 SE2d 324); Central of Ga. R. Co. v. Woolfolk Chemical Works, 122 Ga. App. 789 (178 SE2d 710); Columbia Drug Co. v. Cook, 127 Ga. App. 190 (194 SE2d 286); Turner v. Noe, 127 Ga. App. 870 (195 SE2d 463); Morrow v. Thomason, 127 Ga. App. 309 (193 SE2d 256)) and if necessary, prove the negative or nonexistence of an essential element affirmatively asserted by the plaintiff. Kroger Co. v. Cobb, 125 Ga. App. 310, 312 (4) (187 SE2d 616); Werbin & Tenenbaum v. Heard, 121 Ga. App. 147 (2), supra. And until movant has made a prima facie showing by evidence which demands a finding in his favor as to the particular matter, there is no duty upon the opposing party to produce rebuttal evidence. Anderson v. Redwal Music Co., 122 Ga. App. 247 (176 SE2d 645); Watkins Products v. England, 123 Ga. App. 179 (180 SE2d 265).

2. Whether or not it was necessary that the words of the bus driver must be slanderous in order for the plaintiff to have a recovery because of the language used by the bus driver (see, Cole v. Atlanta & West Point R. Co., 102 Ga. 474 (31 SE 107); Wolfe v. Georgia R. & Elec. Co., 2 Ga. App. 499 (58 SE 899); Zayre of Atlanta v. Sharpton, 110 Ga. App. 587 (139 SE2d 339)) we do not decide. Should we assume that no slander was committed and that slander was a necessary element to recovery because of the spoken words, this would not authorize the grant of a summary judgment for the defendant in the present case; this for the reason that there was pleading and evidence relating to the question of whether the refusal of the bus driver to give the plaintiff a transfer was wrongful. See Georgia R. & Elec. Co. v. Baker, 125 Ga. 562, 563 (4) (54 SE 639). The movant failed completely in producing evidence on this subject other than its admissions, and failed to pierce the pleadings and the issues made by the evidence. "It is the obligation of movant for summary judgment to show positively the truth of matters which are essential to a judgment in its behalf, and this it does not do.” Watkins Products v. England, 123 Ga. App. 179, 182 (180 SE2d 265).

Argued September 4, 1974 Decided November 18, 1974. Henry M. Henderson, for appellant. Hansell, Post, Brandon & Dorsey, W. Lyman Dillon, Michael B. Carroll, for appellee.

3. We accordingly, must hold that the trial judge erred in granting the defendant’s motion for summary judgment.

Judgment reversed.

Webb, J., concurs. Evans, J., concurs specially.