O.C.G.A.
O.C.G.A.

O.C.G.A. § 46-2-90 (2019)

Liability of companies subject to jurisdiction of commission generally; venue for actions generally; award of attorney’s fee

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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If any company under the jurisdiction of the commission does, causes to be done, or permits to be done any act which is prohibited, forbidden, or declared to be unlawful, or fails to do any act which is required either by a law of this state or by an order of the commission, such company shall be liable to the persons affected thereby for all loss, damage, or injury caused thereby or resulting therefrom. An action to recover for such loss, damage, or injury may be brought in any court of competent jurisdiction by any such person. In case of recovery, if the jury finds that such act or failure to act was willful, it may fix a reasonable attorney’s fee, which shall be taxed and collected as part of the costs of the case.

History

(Ga. L. 1907, p. 72, § 9; Civil Code 1910, § 2666; Code 1933, § 93-415.)

Annotations

Law reviews. - For article advocating that payment of attorneys fees be assigned to the losing party, see 18 Ga. B.J. 439 (1956). For

annual survey of recent developments, see 38 Mercer L. Rev. 473 (1986).

JUDICIAL DECISIONS Former Civil Code 1910, § 2666 (see O.C.G.A § 46-2-90) did not repeal former Civil Code 1910, § 2640 (see O.C.G.A § 46-1-2), providing for actions against railroad companies. Atlantic Log & Export Co. v. Central of Ga. Ry., 171 Ga. 175, 155 S.E. 525 (1930). The combined intent of O.C.G.A. §§ 46-2-90 and 46-1-2 is to provide for the recovery of compensatory and exemplary damages as well as attorney fees for the tortious infliction of property damages upon the owner or possessor of property where the damage is inflicted as the result of a wilful act. Southern Ry. v. Malone Freight Lines, 174 Ga. App. 405, 330 S.E.2d 371 (1985). Violations of O.C.G.A. § 46-2-25.1 or O.C.G.A. § 46-2-25.2 did not impose any duties or obligations upon telecommunica-

tion providers, a violation of which would give rise to a cause of action under O.C.G.A. § 46-2-90. Lang v. Standard Tel. Co., 243 Ga. App. 301, 533 S.E.2d 162 (2000). ‘‘Law of the state’’ is to be construed as referring to statute law. Southern Bell Tel. & Tel. Co. v. Beach, 8 Ga. App. 720, 70 S.E. 137 (1911). ‘‘Order of the commission’’ construed. - Expression ‘‘order of the commission,’’ refers to special orders of the commission, and not to its general rules. Southern Bell Tel. & Tel. Co. v. Beach, 8 Ga. App. 720, 70 S.E. 137 (1911). No right of action for difference in rates. - Former Code 1933, § 93-415 (see O.C.G.A § 46-2-90) only gave a right of action for loss, damage or injury; there was no statute giving a right of action for difference in rates. Columbia Baking Co. v. At-

lanta Gas Light Co., 78 Ga. App. 241, 50 S.E.2d 382 (1948). Liability relating to ‘‘order of the commission.’’ - Only liability relating to ‘‘order of the commission’’ is for omission to perform such order or mere nonfeasance and does not include liability for the positive acts of charging and collecting freight in excess of the rates and tariffs fixed by the commission. Atlantic Log & Export Co. v. Central of Ga. Ry., 171 Ga. 175, 155 S.E. 525 (1930). No liability for rate difference where provided for in approved contract. - A gas company under the jurisdiction of the Public Service Commission is not liable to an industrial consumer for the difference between the rates charged to it and those charged to other industrial users of gas when the latter rates are provided for in contracts filed with the commission which it permits to go into effect. Columbia Baking Co. v. Atlanta Gas Light Co., 78 Ga. App. 241, 50 S.E.2d 382 (1948). Action by shipper against railroad for overcharges held not authorized. - Former Civil Code 1910, § 2666 (see O.C.G.A § 46-2-90) did not confer right on shipper to bring action against railroad company for

recovery of freight overcharges paid on intrastate shipments in excess of the rates and tariff fixed by the Public Service Commission. Atlantic Log & Export Co. v. Central of Ga. Ry., 171 Ga. 175, 155 S.E. 525 (1930). Liability for failure to restore electric power. - City was liable for the actual damages caused by its violations of federal law in refusing immediately to restore electric power upon receiving notice of debtor’s bankruptcy petition. Tarrant v. City of Douglas, 190 Bankr. 704 (Bankr. S.D. Ga. 1995). When attorneys’ fees may not be awarded. - Former Civil Code 1910, § 2666 (see O.C.G.A § 46-2-90) did not authorize the recovery of attorneys’ fees (in cases where they were not otherwise recoverable under the general law) where the thing done or omitted had not been forbidden by some statutory enactment in this state or by some order of the commission. Southern Bell Tel. & Tel. Co. v. Beach, 8 Ga. App. 720, 70 S.E. 137 (1911). Cited in Savannah Elec. Co. v. Lowe, 27 Ga. App. 350, 108 S.E. 313 (1921); Harrison v. Harrison, 208 Ga. 70, 65 S.E.2d 173 (1951).

RESEARCH REFERENCES Am. Jur. 2d. - 14 Am. Jur. 2d, Carriers, §§ 1205, 1206, 1207, 1210. 65 Am. Jur. 2d, Railroads, § 281. ALR. - Injury to one other than passenger or employee from fall of trolley pole or other part of streetcar, 5 ALR 1336. Liability of street railway company to passenger struck by vehicle not subject to its control, 31 ALR 572; 44 ALR 162.

Liability of street railway company or municipality for injury due to condition of part of street occupied by street railway, 54 ALR 1291. Liability of motorbus carrier to passenger injured through fall while alighting at place other than regular bus stop, 7 ALR4th 1031.

Notes of Decisions
Cited in 9 cases (1 in the last 5 years), 1985–2021 · leading case: Ga. Power Co. v. Cazier, 815 S.E.2d 922 (Ga. 2018).
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Ga. Power Co. v. Cazier, 815 S.E.2d 922 (Ga. 2018). · cites it 20× “For themselves and the putative class of Georgia Power customers, the plaintiffs assert claims for conversion, money had and received, unjust enrichment, and damages under OCGA § 46-2-90. 1 Georgia Power denies that it has calculated municipal franchise fees other than as…”
Georgia Power Co. v. Cazier, 303 Ga. 820 (Ga. 2018). · cites it 15× “but rather authorizes an action to recover damages ‘in any court of competent jurisdiction’ .”
Lange v. Stand. Tel. Co., 533 S.E.2d 162 (Ga. Ct. App. 2000). · cites it 62× “2)" and "For A Second Cause Of Action (OCGA § 46-2-90)." In its order granting the defendants' motion to dismiss, the trial court concluded: that neither statute [OCGA § 46-2-25.”
S. Ry. Co. v. Malone Freight Lines, Inc., 330 S.E.2d 371 (Ga. Ct. App. 1985). · cites it 16× “Relying on OCGA § 46-2-90, both Empire and Malone sought attorney fees.”
Amy N. Cazier v. Georgia Power Co., 793 S.E.2d 668 (Ga. Ct. App. 2016). · cites it 10× “In addition, we declined to consider “whether the appellees’ complaint may be amended to assert a claim founded on OCGA § 46-2-90 or as to the merits of such a claim.”
Georgia Power Co. v. Cazier, 740 S.E.2d 458 (Ga. Ct. App. 2013). · cites it 6× “Any claim on appeal under OCGA § 46-2-90 has been waived. Lastly, we note that the appellees, in their appellate brief, have also claimed that OCGA § 46-2-90, which addresses the liability of companies subject to the jurisdiction of the Public Service Commission, allows their…”
Tarrant v. City of Douglas (In Re Tarrant), 190 B.R. 704 (Bankr. S.D. Ga. 1995). · cites it 6× “*709 O.C.G.A. § 46-2-90. 1 Debtor has indicated that he lost food valued at $190.”
Georgia Power Co. v. Amy N. Cazier (Ga. Ct. App. 2013). · cites it 6× “Any claim on appeal under OCGA § 46-2-90 has been waived. Lastly, we note that the appellees, in their appellate brief, have also claimed that OCGA § 46-2-90, which addresses the liability of companies subject to the jurisdiction of the public service commission, allows their…”
Georgia Power Co. v. Amy N. Cazier (Ga. Ct. App. 2021). · cites it 2× “On remand from our ruling in Cazier I, plaintiffs amended their complaint to add a claim for improper MFF calculation under OCGA § 46-2-90, which authorizes claims against entities subject to PSC jurisdiction.”
Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.