Smith v. Southern Railway Co.

63 S.E. 801, 132 Ga. 57, 1909 Ga. LEXIS 39

• Court: Supreme Court of Georgia
• Decided: February 17, 1909
• Status: Published

Opinions

Holden, J.

(After stating the facts.) 1. The plaintiffs, brought suit to. recover the penalty of $25 per day provided for in Civil Code, §2244, because of the failure of the defendant to erect-a cattle-guard within 30 days after notice was served on the defendant to erect such cattle-guard, as provided in the Civil Code, § 2243; and to the order of the court, granting a nonsuit at the conclusion of plaintiffs’ evidence, they excepted. The defendant contends that the notice directed to it was not served on any agent or officer of the defendant, but that A. McCollister, on whom it was served, was neither an agent nor officer of the company. The Civil Code, §2243, provides: “Thirty days written notice to build such cattle-guards shall be served on any agent or officer of such company, by the owner of the lands to be affected by such cattle-guards.” One of the main questions involved in this case is whether or not A. McCollister, on whom the notice was served, was an officer or agent of the defendant at the time. The testimony of A. McCollister, a witness for the plaintiff, is set out in full in the statement of facts. Among other things, he testified as follows: “Mr. Lavender was the regular agent at Rome. In his absence from the city in February, 1906, I represented Mr. Lavender, but I did not act as agent. In representing him, everything was done in his name as agent. . . As I understand it,. Mr. Lavender is agent there, and I his chief clerk. He gets his orders from the company and transmits them to me, and I act at his. direction. When he is away I carry on the ministerial work of the office, using his name to do it to the best of my knowledge and ability. If a matter comes up about which I am doubtful, I refer it to him, or any thing that requires the exercise of such judgment that the agent is required to use. . . There are eight clerks in the office where I work altogether. That includes the whole ■force at the depot, including myself. I think there were nine connected with the handling of the business from the station, from the transfer platform up to the agent. . . I handled so many papers of that description; . . there is so much detail work in the office I can’t put everything up to the agent; but in case of a paper or anything like that, that I would hold until Mr. Lavender was present and he would tell me what to do with it, but simply matters of routine in the office I handled them without referring them to him.” It does not appear from the record whether McCollister was employed and paid by Lavender or by defendant. It can not be contended that McCollister was an officer of the company. Was he an agent of the company on whom service of the notice could be made ? If he was not an agent, but merely an employee or servant of the defendant, no proper service was made, and the granting of the nonsuit was proper.

We do not think that McCollister, on whom the notice was served, was an agent of the defendant within the meaning of the statute under consideration. His main work consisted in looking after the routine duties of the office. An agent on whom service could be made under the statute would not be a clerk in the office of a station agent who performed the routine work of the office. McCollister did not sustain such a representative capacity towards the corporation as would make service on him good as the -agent thereof. The chief clerk in an office, doing the routine work of .an officer, could not be said to be an officer; nor do we think that the chief clerk in the office of a station agent, doing merely the routine work of that office, could be said to be an agent, within the meaning of the statute under consideration. It is true that McCollister did most of the acts which' the agent was required to perform, but he did them in the name of the agent, and signed the agent’s name when necessary. McCollister necessarily had some discretion in the work he did, but every servant or employee has some discretion about the particular work in which he is engaged. MeCollister had no general authority or discretion, and his work was immediately under the express direction of the station agent, or the doing of specified things in accordance with previous instructions from him." A station agent is usually one falling within the common acceptation of the term “agent of a railroad company,” but an employee in his office as his chief clerk, doing the routine work of the office, can not be said to be an agent within the meaning of the statute referred to. This statute, when violated, subjects the defendant to the penalty provided for in the succeeding section, and, in passing upon an action to enforce.such penalty, must be strictly construed.

The ruling here made does not conflict with the decision in Southern Bell Telephone Co. v. Parker, 119 Ga. 721 (47 S. E. 194). In 19 Enc. PI. & Pr. 665, it is said: “Some of the statutes contain provisions for service in certain contingencies upon a ‘general or special agent,’ or upon ‘any agent,’- etc. It is generally held that the word ‘agent,’ as used in such statutes, applies -only to such agents as have some sort of controlling authority, and not to every person employed or intrusted with a commission by the corporation.” Also see, in this connection, pages 666, 676, 677, and 678 of this same volume. We think the judgment awarding a nonsuit was proper, and it is

Affirmed.

All the Justices concur, except