Whittle v. Southern Bell Telephone & Telegraph Co.
Whittle v. Southern Bell Telephone & Telegraph Co.
Opinion of the Court
A common carrier of passengers is liable for an assault committed by one of its employees on a passenger, irrespective of whether the employee acted within the scope of his employment. 14 Am. Jur. (2d) Carriers § 1061, at 483-84 (1964); 13 C.J.S. Carriers § 514, at 465-66 (1990). This is because a common carrier of passengers has a broad duty to protect its passengers. 14 Am. Jur. (2d) supra, at 483; see Singletary v. Atlantic Coast Line R. Co., 217 S.C. 212, 60 S.E. (2d) 305 (1950) (a common carrier of passengers owes passengers the highest degree of care).
On the other hand, the liability of a common carrier of information for an assault by one of its employees on a customer or other third party is dependent on the question of whether the employee acted within the scope of his employment. See Southern Bell Telephone & Telegraph Company v. Sharara, 167 Ga. App. 665, 307 S.E. (2d) 129 (1983) (assault case in which the court held a telephone company, absent statutory aúthority, could not be held to same standard of care in connection with the determination of liability for acts of its employees as is imposed by legislation on a common carrier for wrongful acts committed by its employees against its passengers); 74 Am. Jur. (2d) Telecommunications § 39, at 342 (1974) (“Telegraph and telephone companies are, like other employers, responsible for an injury to a third person occasioned by the tort of an employee done in the course of his employment. . . .”); 86 C.J.S. Telegraphs, Telephones, Radio, and Television § 285, at 295 (1954) (“A telegraph or telephone company is not liable for an act. . . of an agent or employee which is entirely outside the scope of his agency or
A case decided ninety-one years ago, Rankin v. Sievern & K.R. Co., 58 S.C. 532, 36 S.E. 997 (1900), supports our holding that the liability for an assault on a customer or other third party by an employee of a common carrier not engaged in carrying passengers depends on whether the employee acted within the scope of his employment.
In Rankin, the Supreme Court affirmed the dismissal of a complaint brought by a plaintiff against two railroad companies. The plaintiff had sued the railroads because one of their joint employees, a man named Rutledge, cursed the plaintiff while on her hand laying track and putting up telegraph poles. Although the trial court acknowledged the railroads were common carriers, it dismissed the complaint partly because the language and conduct complained of were outside Rutledge’s scope of employment. In the trial court’s opinion, which the Supreme Court approved and officially reported with its own, the following language appears:
If Rutledge had been the agent of a common carrier of passengers, and plaintiff had been a passenger under the contractual relations of carrier and passenger to safely carry her, etc., and, while being transported as a passenger, Rutledge, as the agent of defendants, had addressed her as stated in the complaint herein, his curses, threats, etc., would have created a cause of action against the railroad company.
58 S.C. at 539-40, 36 S.E. at 1000; see also Matheson v. American Telephone & Telegraph Co., 137 S.C. 227, 135 S.E. 306
The trial court properly granted summary judgment to Southern Bell. See United States Leasing Corporation v. Janicare, Inc., 294 S.C. 312, 315, 364 S.E. (2d) 202, 204 (Ct. App. 1988) (“Summary judgment should be granted when it is clear that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.”).
Affirmed.
Concurring Opinion
(concurring):
Ms. Whittle limits her theory of recovery to the argument that Southern Bell is liable for the act of its employee because it is a common carrier. She does not claim that the employee was acting within the scope of his employment. Nor does she seek to recover on any other basis. Rather, she would have us apply the rule applicable to common carriers of passengers even though Southern Bell is not a common carrier of passengers. Our Supreme Court has refused to recognize the rule except for common carriers of passengers. “We are, of course, bound by the decisions of our Supreme Court.” Carroll v. Jackson Nat’l Life Ins. Co., — S.C. —, —, 405 S.E. (2d) 425, 428 (Ct. App. 1991) (Sanders, C.J., concurring). Thus, the result we reach is preordained by the way in which the case has been presented.
Reference
- Full Case Name
- Bertha WHITTLE, Appellant v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY and Donald Gene Clamp, of Whom Southern Bell Telephone and Telegraph Company Is, Respondent
- Cited By
- 4 cases
- Status
- Published