O.C.G.A. § 46-1-1 (2019)

Annotations

Editor’s notes. - Ga. L. 2000, p. 951, § 13-1, not codified by the General Assembly, provides that the 2000 Act which amended this Code section becomes fully effective July 1, 2001, but authorizes administrative action commencing April 28, 2000, for purposes of appointing certain officials, adopting rules and regulations, employing personnel, and preparing for and phasing in full implementation; provided, however, that the Governor may by executive order extend the date for full implementation of the Act to no later than July 1, 2003. In accordance with an executive order issued June 29, 2001, by the Governor, the amendment of this Code section by Ga. L. 2000, p. 951, became fully effective July 1, 2001. Law reviews. - For article commenting on the 1997 amendment of this section, see 14 Georgia St. U.L. Rev. 264 (1997).

The 2002 amendments. The first 2002 amendment, effective April 18, 2002, part of an Act to revise, modernize, and correct the Code, deleted ‘‘by the Public Service Commission’’ preceding ‘‘pursuant to this title’’ in paragraph (2) and substituted ‘‘Department of Motor Vehicle Safety’’ for ‘‘Public Service Commission’’ in paragraph (18). The second 2002 amendment, effective July 1, 2002, rewrote paragraph (7); rewrote subparagraph (9)(C); and, in paragraph (11), substituted ‘‘United States Department of Transportation’’ for ‘‘interstate Commerce Commission’’ and inserted ‘‘passenger’’ near the middle. Code Commission notes. - Pursuant to Code Section 28-9-5, in 1986, the definitions in this Code section were arranged in alphabetical order. Pursuant to Code Section 28-9-5, in 2000, ‘‘Senate Natural Resources Committee’’ was substituted for ‘‘Senate Committee on Natu-

JUDICIAL DECISIONS Analysis General Consideration Common Carriers Motor Contract Carriers Passengers trips to and from an airport are not pre-empted by state law where the limousine service comes within the exception set forth in O.C.G.A. § 46-1-1(9)(C)(xiii). Executive Town & Country Servs., Inc. v. Young, 258 Ga. 860, 376 S.E.2d 190 (1989). Exemption of timber haulers. - Where an insured commercial motor vehicle was acting as a timber hauler at the time of an accident, it was not within the definition of a common carrier or contract carrier and no direct action could be maintained against insurer because the insurer was outside the ambit of O.C.G.A. § 46-7-12. Smith v. Southern Gen. Ins. Co., 222 Ga. App. 582, 474 S.E.2d 745 (1996). Cited in Savannah T. & I. of H. Ry. v.

General Consideration Exemption of hospital authority vehicle. - In action against county hospital authority and ambulance driver by automobile accident vehicle, the hospital authority was exempt from the venue provision of O.C.G.A. § 46-7-17 under the exemption provided for vehicles operated by the state or any subdivision thereof in O.C.G.A. § 46-1-1(9)(C)(viii). Calhoun County Hosp. Auth. v. Walker, 205 Ga. App. 259, 421 S.E.2d 777 (1992), cert. denied, 205 Ga. App. 899, 421 S.E.2d 777 (1992). Regulation of limousine services. - City ordinances regulating the fares licensed limousine service companies may charge for

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Comm’n v. Taylor, 172 Ga. 100, 157 S.E. 515 (1931); In re Ga. Air, Inc., 345 F. Supp. 636 (N.D. Ga. 1972). Status as common carrier cannot be forced on one by legislative fiat. In re Ga. Air, Inc., 345 F. Supp. 636 (N.D. Ga. 1972). Public nature of common carrier business. - Whether a person is a common carrier or a private carrier depends upon whether it is public business or employment, and whether the service is to be rendered to all indifferently; and, whether one has so held oneself out as so engaged as to make one liable for refusal to accept the employment offered. McIntyre v. Harrison, 172 Ga. 65, 157 S.E. 499 (1931). Carrier not common carrier merely by inviting employment by all. - Mere fact that carrier invites all and sundry persons to employ the carrier does not render the carrier a common carrier, if the carrier reserves the right of accepting or rejecting their offers of goods for carriage, whether the carrier’s vehicles are full or empty, being guided in the carrier’s decision by the attractiveness or otherwise of the particular offer, and not by the carrier’s ability or inability to carry, having regard to the carrier’s other engagements. McIntyre v. Harrison, 172 Ga. 65, 157 S.E. 499 (1931); Georgia Pub. Serv. Comm’n v. Taylor, 172 Ga. 100, 157 S.E. 515 (1931). Single contract of transportation. - One who contracts to transport goods from one point to another and deliver them in good order and condition, unavoidable accidents only excepted, is not a common carrier, but is responsible on one’s own contract as one. Fish v. Chapman & Ross, 2 Ga. 349, 46 Am. Dec. 393 (1847). Making individual bargains tends to make service private. - If a carrier does not deal with the public indiscriminately as a matter of routine, but in effect makes an individual bargain in each case, this course of business tends to show that the service is upon a private basis. McIntyre v. Harrison, 172 Ga. 65, 157 S.E. 499 (1931). Making individual bargains not conclusive of nature of carrier. - The making of separate contracts is considered in determining whether a person is a private or a public carrier, but is not conclusive, since contracts might be made simply to escape the duties of a common carrier by subterfuge. McIntyre v.

Williams, 117 Ga. 414, 43 S.E. 751, 61 L.R.A. 249 (1903); Helmly v. Savannah Office Bldg. Co., 13 Ga. App. 498, 79 S.E. 364 (1913); Atlanta Term. Co. v. Lowndes, 30 Ga. App. 115, 117 S.E. 111 (1923); Cherry v. City of Atlanta, 47 Ga. App. 719, 171 S.E. 463 (1933), aff ’d, 179 Ga. 249, 175 S.E. 563 (1934); Brown v. Union Bus Co., 61 Ga. App. 496, 6 S.E.2d 388 (1939); Acme Freight Lines v. City of Vidalia, 193 Ga. 334, 18 S.E.2d 540 (1942); Collins v. Mills, 198 Ga. 18, 30 S.E.2d 866 (1944); Record Truck Line v. Harrison, 220 Ga. 289, 138 S.E.2d 578 (1964); L.C. Robinson & Sons v. Undercofler, 221 Ga. 391, 144 S.E.2d 755 (1965); Darlington Corp. v. Finch, 113 Ga. App. 825, 149 S.E.2d 861 (1966); Wolverine Ins. Co. v. Strickland, 116 Ga. App. 62, 156 S.E.2d 497 (1967); Nobles v. H.W. Durham & Co., 120 Ga. App. 418, 170 S.E.2d 764 (1969); Travelers Indem. Co. v. Federal Ins. Co., 297 F. Supp. 1346 (N.D. Ga. 1969); Nobles v. H.W. Durham & Co., 226 Ga. 134, 173 S.E.2d 200 (1970); Radcliffe v. Boyd Motor Lines, 129 Ga. App. 725, 201 S.E.2d 4 (1973); Seaboard Coast Line R.R. v. Freight Delivery Serv., Inc., 133 Ga. App. 92, 210 S.E.2d 42 (1974); City of Calhoun v. North Ga. Elec. Membership Corp., 233 Ga. 759, 213 S.E.2d 596 (1975); Gunn v. Sims Crane Serv., Inc., 182 Ga. App. 24, 354 S.E.2d 653 (1987); Progressive Cas. Ins. Co. v. Scott, 188 Ga. App. 75, 371 S.E.2d 881 (1988); Chrostowski v. G & MSS Trucking, Inc., 198 Ga. App. 140, 401 S.E.2d 53 (1990). Common Carriers Definition of ‘‘private carrier.’’ - A ‘‘private carrier’’ is one who, without being engaged in the business of carrying as a public employment, undertakes to deliver goods in a particular case for hire or reward. McIntyre v. Harrison, 172 Ga. 65, 157 S.E. 499 (1931). Whether person is common carrier or private carrier depends upon facts; and where there is a question whether the carrier is a private or a common carrier, it is to be determined by the facts relating to, first, whether it is public business or employment, and whether the service is to be rendered to all indifferently; and, second, whether one has so held oneself out as so engaged as to make the person liable for a refusal to accept the employment offered. Georgia Pub. Serv.

ferently, so as to make it liable for refusal to accept the employment offered. Bricks v. Metro Ambulance Serv., Inc., 177 Ga. App. 62, 338 S.E.2d 438 (1985) (decided prior to amendment, adding division (9)(c)(xv)). Miller running ferry not common carrier. - One who keeps a ferry for one’s own use and for the convenience of customers to one’s mill, but who charges no ferriage, is not a common carrier, and is only bound to ordinary diligence. Self v. Dunn & Brown, 42 Ga. 528, 5 Am. R. 544 (1871). Truck transporting potting soil held not common carrier. - Truck which was engaged exclusively in the transportation of potting soil was not a ‘‘motor common carrier.’’ National Indem. Co. v. Tatum, 193 Ga. App. 698, 388 S.E.2d 896 (1989). Truck transporting gravel or other road material not common carrier. - Truck which was engaged exclusively in the transportation of gravel, crushed stone, plant mix road material or road base materials was not a ‘‘motor common carrier.’’ Bailey v. Occidental Fire & Cas. Co., 193 Ga. App. 710, 388 S.E.2d 899 (1989). No set length of road. - Former Civil Code 1895, § 2264 (see O.C.G.A. § 46-1-1) did not indicate any length of road which the company must have in order to be a common carrier. Bridwell v. Gate City Term. Ca., 127 Ga. 520, 56 S.E. 624, 10 L.R.A. (n.s.) 909 (1907). Common carrier bound to use extraordinary diligence. - While a carrier of passengers is not an insurer of the safety of the carrier’s passengers in the sense that a common carrier of goods is said to be an insurer of the safety of goods carried, the carrier is bound to exercise extraordinary care and diligence for the safety of the carrier’s passengers, and it matters not the kind of conveyance used or the nature of the motive power employed. Sheffield v. Lovering, 51 Ga. App. 353, 180 S.E. 523 (1935). Allegation of negligence unnecessary. - Public ferrymen being common carriers, no allegation of negligence was necessary in an action brought to recover damages for the loss of property accepted for shipment. Louisville & N.R.R. v. Warfield & Lee, 129 Ga. 473, 59 S.E. 234 (1907); Deen v. Wheeler, 7 Ga. App. 507, 67 S.E. 212 (1910).

Common Carriers (Cont’d) Harrison, 172 Ga. 65, 157 S.E. 499 (1931). Common carrier must be entitled to compensation. - To make one a common carrier, one must be entitled, either by the bargain or by implication, to toll or hire. Self v. Dunn & Brown, 42 Ga. 528, 5 Am. R. 544 (1871). Carrying goods as common employment. - To make a person a common carrier, a person must exercise it as a common employment; the person must undertake to carry goods for persons generally, and the person must hold oneself out as ready to engage in the transportation of goods for hire as a business, and not as a casual occupation pro hac vice. Fish v. Chapman & Ross, 2 Ga. 349, 46 Am. Dec. 393 (1847). Evidence that carrier is common carrier. - That one is a common carrier may be evidenced by carrier’s own notice, or practically by a series of acts, by one’s own habitual continuance in one’s line of business. McIntyre v. Harrison, 172 Ga. 65, 157 S.E. 499 (1931). Express company is common carrier. - An express company which pursues continuously, for any period of time, the business of transporting goods, packages, etc., is a common carrier. Southern Express Co. v. Newby, 36 Ga. 635, 91 Am. Dec. 783 (1867). Chartered car. - There is no exception made in the case of a chartered car. Central R.R. Banking Co. v. Anderson, 58 Ga. 393 (1877). A school bus is not a motor common carrier. Hancock v. Bryan County Bd. of Educ., 240 Ga. App. 622, 522 S.E.2d 661 (1999). Operator for hire of school bus. - The operator for hire of a school motorbus who operates along a certain route every school day in taking all school children alike to and from a certain school is a carrier of passengers insofar as such school children are concerned, and is required to exercise extraordinary care and diligence for the safety of any one of such school children riding in the driver’s bus. Sheffield v. Lovering, 51 Ga. App. 353, 180 S.E. 523 (1935). An ambulance is a common carrier so long as it undertakes to carry sick, injured, or disabled persons indiscriminately and indif-

pers Ass’n v. Georgia Pub. Serv. Comm’n, 211 Ga. 550, 87 S.E.2d 75 (1955).

Motor Contract Carriers O.C.G.A. § 46-1-1(9)(C) not unconstitutional. - The classification in present O.C.G.A. § 46-1-1(9)(C)(x) and (9)(C)(xi), designed to ameliorate the lot of the producers of farm and dairy products, is not an arbitrary preference within the meaning and the condemnation of U.S. Const., Amend. 14. Aero Mayflower Transit Co. v. Georgia Pub. Serv. Comm’n, 295 U.S. 285, 55 S. Ct. 709, 79 L. Ed. 1439 (1935). Language in O.C.G.A. § 46-1-1(9)(C)(x) limits exemption. - Language ‘‘so long as the title remains in the producer’’ in present O.C.G.A. § 46-1-1(9)(C)(x) limits operation of exemption in that section to such an extent that the only property in the class mentioned which is exempted is property where the ‘‘title remains in the producer.’’ This is a reasonable classification in favor of the producer, which will enable movement of the products over the highways so long as title remains in the producer without exaction of the prescribed fee. Aero Mayflower Transit Co. v. Georgia Pub. Serv. Comm’n, 179 Ga. 431, 176 S.E. 487 (1934), aff ’d, 295 U.S. 285, 55 S. Ct. 709, 79 L. Ed. 1439 (1935). O.C.G.A. § 46-1-1(9)(C) strictly construed. - With specific reference to O.C.G.A. § 46-1-1(9)(C), exemptions from taxation are to be strictly construed against the taxpayer. Georgia Cas. & Sur. Co. v. Jernigan, 166 Ga. App. 872, 305 S.E.2d 611 (1983). Limitations on taxicab operations. - A taxicab which was qualified to operate exclusively within city limits and not to fixed termini without the city limits could not transport passengers for hire as a part of its regular business beyond the city limits except ‘‘occasionally’’ and then not to ‘‘fixed termini.’’ Selph v. Georgia Stages, Inc., 62 Ga. App. 887, 10 S.E.2d 209 (1940). Activities of association constituted operation as motor carrier for hire. - Where nonprofit association used trucks owned and operated by the association to haul products of association members to and from location in this state, and at the end of the year the amount of fees in excess of costs were refunded to members, the association was operating as a motor carrier for hire, and was required to obtain a certificate of public convenience and necessity. Southeast Ship-

Passengers Definition of passenger not exhaustive. - Former Civil Code 1910, § 2715 (see O.C.G.A § 46-1-1) afforded one instance of a definition of passenger, but was not exhaustive. There was no statute in this state giving a complete and exhaustive definition of the term ‘‘passenger.’’ The relation arises out of contract express or implied, and must depend upon the facts of each case, which are necessarily variable. Payne v. Allen, 155 Ga. 54, 116 S.E. 640 (1923). Mere intention does not make person passenger. - A mere intention on the part of one to become a passenger, without regard to any act on the part of the carrier from which an acceptance of the person as a passenger might arise, expressly or by necessary implication, does not constitute such person a passenger. White v. Boyd, 58 Ga. App. 219, 198 S.E. 81 (1938). Plaintiff ’s unauthorized boarding of a school bus did not make plaintiff a ‘‘passenger’’ thereon. Hancock v. Bryan County Bd. of Educ., 240 Ga. App. 622, 522 S.E.2d 661 (1999). Railway mail clerk was a passenger, and former Code 1933, § 18-201 (see O.C.G.A § 46-1-1) was applicable under Georgia law to such person. Jackson v. Southern Ry., 317 F.2d 532 (5th Cir.), cert. denied, 375 U.S. 837, 84 S. Ct. 77, 11 L. Ed. 2d 65 (1963). Effect of use of school bus for special trips. - A school bus operator who used a bus on nonschool days for special trips, not charters, in undertaking to transport college students to a football game in Tennessee, was a ‘‘carrier of passengers’’ within the meaning of former Code 1933, § 18-204 (see O.C.G.A § 46-9-132) and while being used on one of its special trips, was a ‘‘public conveyance’’ within the meaning of former Code 1933, § 18-201 (see O.C.G.A § 46-1-1). Scott v. Torrance, 69 Ga. App. 309, 25 S.E.2d 120 (1943). Legal duty of taxicab operators. - The operators of a taxicab business of transporting the general public for hire are carriers of passengers, and amenable to the legal duty of exercising extraordinary diligence for their protection. Locke v. Ford, 54 Ga. App. 322, 187 S.E. 715 (1936).

Passengers (Cont’d) No showing by evidence that plaintiff was passenger. - Where it is not shown by the evidence that plaintiff made any agreement, express or implied, with the defendant to transport plaintiff in the relationship of passenger and carrier, and plaintiff paid nothing, did not promise to pay anything, and did not profess to have known anything about an arrangement, alleged in plaintiff ’s petition, whereby from paid admissions to the school entertainment the bus drivers would be compensated for transporting plaintiff and others, it was not shown that plaintiff was a passenger. White v. Boyd, 58 Ga. App. 219, 198 S.E. 81 (1938). No recovery by person on shuttle train. - Proof that a railroad company ran a shuttle train from a city to its railroad shops nearby, for the purpose of carrying its employees to

and from their work, and that occasionally other persons boarded the train and were carried either to or from the shops without the payment of fare, does not entitle a person who was upon the train and was not an employee to recover for injuries occasioned by a sudden jerk of the train, when there was no payment of fare exacted or knowledge of the presence of the person. Carter v. Seaboard Air-Line Ry., 21 Ga. App. 251, 94 S.E. 280 (1917). Amusement park ride not ‘‘public conveyance.’’ - Amusement ride known as ‘‘The Wheelie’’ was not a public conveyance within the meaning of O.C.G.A. § 46-1-1, therefore the standard of care owed by the proprietor, owner, and operator of ‘‘The Wheelie’’ was a duty of ordinary care to the proprietor’s passengers. Harlan v. Six Flags Over Ga., Inc., 250 Ga. 352, 297 S.E.2d 468 (1982).

OPINIONS OF THE ATTORNEY GENERAL such as spreading or placing materials at delivery site are subject to regulation by the commission. 1962 Op. Att’y Gen. p. 438. Exempt and nonexempt motor carriers due to products carried. - Any motor vehicle which carries the products listed is exempt from the operation of the chapter only if such vehicle hauls or transports exclusively those commodities or others also exempt by law; however, as soon as a motor vehicle begins to carry nonexempt products, either in the same load with exempt products or alternately with exempt products, or indeed at all, then it becomes a motor carrier subject to the chapter, and thus to the jurisdiction of the commission. 1960-61 Op. Att’y Gen. p. 431. A company constructing a rapid rail passenger service line is a utility within the meaning of O.C.G.A. § 46-1-1 and the Department of Transportation has authority to issue a revocable license to such company to cross the rights-of-way of several state routes so long as consideration is received which represents a substantial benefit to the public. 1995 Op. Att’y Gen. No. 95-45.

Common carrier defined. - A common carrier is one who undertakes for hire to carry all persons indifferently who may apply for passage so long as there is room and there is no legal excuse for refusal. 1957 Op. Att’y Gen. p. 110. School bus is not motor common carrier. 1957 Op. Att’y Gen. p. 110. Use of trucks by railroad requires classification as common or contract carriers. - Trucks used by a railroad operating a pickup and delivery service for which no separate charge is made are to be classified as ‘‘common or contract carriers.’’ 1960-61 Op. Att’y Gen. p. 292. Description of carrier not under jurisdiction of commission. - A carrier which transports only its own goods and does not contract or hire itself out to transport goods owned by others is not under the jurisdiction of the commission. 1970 Op. Att’y Gen. No. U70-112. Contractor subject to regulation by commission. - Independent contractor transporting materials by motor vehicle on public highways and performing ancillary services

RESEARCH REFERENCES Am. Jur. 2d. - 13 Am. Jur. 2d, Carriers, § 1 et seq. 14 Am. Jur. 2d, Carriers, § 714. 18

Am. Jur. 2d, Corporations, § 30. 65 Am. Jur. 2d, Railroads, § 6.

co-operative purchasing or marketing associations, or their members, as common carriers, 98 ALR 226. Person or corporation transporting goods on the public highways as a common carrier, or private or contract carrier, as regards liability for loss of or damage to goods, 112 ALR 89. When relation of carrier and passenger commences as between railway or interurban company and one intending to take train or car not at a regular stopping place, 116 ALR 756. Isolated, occasional, or incidental transportation of person or property for compensation as within contemplation of statute requiring permit or otherwise regulating transportation of persons or property on highway, 123 ALR 229. Who is ‘‘common carrier’’ within provision of insurance policy providing for indemnity for injury or death while on conveyance operated by common carrier, 149 ALR 1293. What carriers are within statutory definition of common carriers by motor vehicle, 161 ALR 417. Car pool or ‘‘share-the-expense’’ arrangement as subjecting vehicle operator to regulations applicable to carriers, 51 ALR2d 1193. Air carrier as common or private carrier, and resulting duties as to passenger’s safety, 73 ALR2d 346. Share-the-ride arrangement or car pool as affecting status of automobile rider as guest, 10 ALR3d 1087. Liability for injury to or death of passenger from accident due to physical condition of carrier’s employee, 53 ALR3d 669. What is ‘‘conveyance,’’ ‘‘passenger conveyance,’’ or ‘‘public conveyance’’ within coverage of accident policy, 60 ALR3d 858. Who is ‘‘fare-paying passenger’’ within coverage provision of life or accident insurance policy, 60 ALR3d 1273. Liability for injury caused by fall of person into shaft, or by abrupt drop, sudden movement, or stopping between floors, of automatic passenger elevator, 64 ALR3d 950.

C.J.S. - 13 C.J.S., Carriers, §§ 2, 495, 499, 502. ALR. - Carriers: attempt to have child transported without paying fare, 1 ALR 1451. Status of passenger in ordinary coach who enters Pullman coach for temporary purpose, 18 ALR 71. Persons or corporations engaged in local transportation of goods as common carriers, 18 ALR 1316. Federal control of public utilities, 19 ALR 678; 52 ALR 296. Validity of statute or ordinance in relation to moving vans and moving operations, 20 ALR 210. Duty and liability to passenger temporarily leaving train, 35 ALR 757; 61 ALR 403. Powers of federal and state governments respectively as regards railroad stations, 37 ALR 1372. Company engaged exclusively or mainly in furnishing switching service as carrier engaged in interstate commerce, 38 ALR 1147. Regulating issuance of securities by public utilities through Public Service Commissions, 41 ALR 889. Liability of carrier for injury to passenger by car door, 41 ALR 1089. Passenger’s waiver of right to seat, 42 ALR 156. One operating bus or stage as common carrier, 42 ALR 853. Presumption and burden of proof as to carrier’s responsibility for goods received in good condition and deliver to consignee in bad condition, 53 ALR 996; 106 ALR 1156. Company furnishing switching service as a common carrier, 54 ALR 620. Logging or mining road as a common carrier, 67 ALR 588. Carrier’s liability as affected by improper packing or preparation of goods for shipment, 81 ALR 811. Conductor’s acceptance of ticket or pass which because of time limit or for other reason he was not obliged to accept as affecting status of, or duty toward, person tendering it, 88 ALR 760. Persons hauling commodities for