2020 Georgia Code
Title 46 - Public Utilities and Public Transportation
Chapter 1 - General Provisions
§ 46-1-1. Definitions

As used in this title, the term:

1. "Certificate" means a certificate of public convenience and necessity issued pursuant to this title.
2. "Commission" means the Public Service Commission.
3. "Company" shall include a corporation, a firm, a partnership, an association, or an individual.
4. "Electric utility" means any retail supplier of electricity whose rates are fixed by the commission.
5. "Gas company" means any person certificated under Article 2 of Chapter 4 of this title to construct or operate any pipeline or distribution system, or any extension thereof, for the transportation, distribution, or sale of natural or manufactured gas.
6. "Person" means any individual, partnership, trust, private or public corporation, municipality, county, political subdivision, public authority, cooperative, association, or public or private organization of any character.
7. "Railroad corporation" or "railroad company" means all corporations, companies, or individuals owning or operating any railroad in this state. This title shall apply to all persons, firms, and companies, and to all associations of persons, whether incorporated or otherwise, that engage in business as common carriers upon any of the lines of railroad in this state, as well as to railroad corporations and railroad companies as defined in this Code section.
8. "Rate," when used in this title with respect to an electric utility, means any rate, charge, classification, or service of an electric utility or any rule or regulation relating thereto.
9. "Utility" means any person who is subject in any way to the lawful jurisdiction of the commission.

(Orig. Code 1863, §§ 2038, 2039; Code 1868, §§ 2039, 2040; Code 1873, §§ 2065, 2066; Ga. L. 1878-79, p. 125, § 12; Code 1882, §§ 719l, 2065, 2066; Civil Code 1895, §§ 2199, 2263, 2264, 2267; Civil Code 1910, §§ 2642, 2711, 2712, 2715; Ga. L. 1931, Ex. Sess., p. 99, § 2; Ga. L. 1931, p. 199, §§ 2, 33; Ga. L. 1933, p. 198, § 1; Code 1933, §§ 18-101, 18-201, 68-502, 68-601, 93-101; Ga. L. 1939, p. 207, § 1; Ga. L. 1943, p. 179, § 1; Ga. L. 1960, p. 1129, § 1; Ga. L. 1962, p. 630, § 1; Ga. L. 1963, p. 30, § 1; Ga. L. 1963, p. 365, § 1; Ga. L. 1964, p. 298, § 1; Ga. L. 1970, p. 224, § 1; Ga. L. 1975, p. 1190, § 1; Ga. L. 1976, p. 197, § 1; Ga. L. 1979, p. 651, § 1; Ga. L. 1980, p. 479, § 1; Code 1933, § 93-102, enacted by Ga. L. 1981, p. 121, § 2; Ga. L. 1982, p. 3, § 46; Ga. L. 1982, p. 410, §§ 1, 2; Ga. L. 1982, p. 827, §§ 1, 2; Ga. L. 1983, p. 3, § 35; Ga. L. 1983, p. 735, § 1; Ga. L. 1984, p. 22, § 46; Ga. L. 1984, p. 1394, § 1; Ga. L. 1985, p. 1394, § 1; Ga. L. 1986, p. 1283, § 1; Ga. L. 1987, p. 1090, § 1; Ga. L. 1990, p. 709, §§ 1, 2; Ga. L. 1993, p. 579, § 1; Ga. L. 1994, p. 97, § 46; Ga. L. 1994, p. 661, § 1; Ga. L. 1994, p. 1238, § 1; Ga. L. 1995, p. 1302, § 14; Ga. L. 1996, p. 950, § 2; Ga. L. 1997, p. 798, § 1; Ga. L. 2000, p. 951, §§ 9-1, 9-2, 9-3; Ga. L. 2002, p. 415, § 46; Ga. L. 2002, p. 1378, § 8; Ga. L. 2005, p. 334, § 28-1/HB 501; Ga. L. 2007, p. 607, § 1/HB 317; Ga. L. 2007, p. 679, § 1/HB 389; Ga. L. 2009, p. 669, § 1/HB 440; Ga. L. 2011, p. 479, § 18/HB 112; Ga. L. 2012, p. 580, § 14/HB 865; Ga. L. 2012, p. 775, § 46/HB 942.)

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.

The 2005 amendment, effective July 1, 2005, substituted "commission" for "commissioner of motor vehicle safety" in paragraph (7); deleted ", provided that they do not operate to or from fixed termini outside of such limits and to any dray or truck which operates within the corporate limits of a city and is subject to regulation by the governing authority of such city or by the commissioner of motor vehicle safety and which goes beyond the corporate limits only for the purpose of hauling chattels which have been seized under any court process" at the end of division (9)(C)(ii); in division (9)(C)(x), substituted "commissioner of public safety" for "commissioner of motor vehicle safety" three times and inserted "and the Environment" following "Senate Natural Resources" in the next-to-last sentence; deleted division (9)(C)(xii), which read: "Motor vehicles engaged in compensated intercorporate hauling whereby transportation of property is provided by a person who is a member of a corporate family for other members of such corporate family, provided:

"(I) The parent corporation notifies the commissioner of motor vehicle safety of its intent or the intent of one of the subsidiaries to provide the transportation;

"(II) The notice contains a list of participating subsidiaries and an affidavit that the parent corporation owns directly or indirectly a 100 percent interest in each of the subsidiaries;

"(III) A copy of the notice is carried in the cab of all vehicles conducting the transportation; and

"(IV) The transportation entity of the corporate family registers the compensated intercorporate hauling operation with the commissioner of motor vehicle safety, registers and identifies any of its vehicles, and becomes subject to the commissioner's liability insurance and motor common carrier and motor contract carrier and hazardous materials transportation rules. For the purpose of this division, the term 'corporate family' means a group of corporations consisting of a parent corporation and all subsidiaries in which the parent corporation owns directly or indirectly a 100 percent interest;" substituted "state revenue commissioner" for "commissioner of motor vehicle safety" four times in division (9)(C)(xiii) and paragraphs (11) and (18), and added "state revenue" preceding "commissioner's" in division (9)(C)(xiii).

The 2007 amendments. The first 2007 amendment, effective July 1, 2007, in division (9)(C)(ii), in the second sentence, substituted "such vehicles" for "taxicabs and buses" in the middle and added a period at the end, and added the last two sentences. The second 2007 amendment, effective July 1, 2007, added the last sentence in subparagraph (9)(B) and substituted the present provisions of division (9)(C)(xiii) for the former provisions which read: "Vehicles, except limousines, transporting not more than ten persons for hire, except that any operator of such a vehicle is required to register the exempt operation with the state revenue commissioner, register and identify any of its vehicles, and become subject to the state revenue commissioner's liability insurance and vehicle safety rules;".

The 2009 amendment, effective May 4, 2009, added paragraphs (5.1), (6.2), and (6.3); in paragraph (6), near the beginning, inserted "'compensation' or 'for'" and inserted "payment or other", and added "or for hire, provided that no exempt rideshare shall be deemed to involve any element of transportation for compensation or for hire" at the end; and, in paragraph (13), deleted "or" at the end of subparagraph (13)(C), substituted "; or" for a period at the end of subparagraph (13)(D), and added subparagraph (13)(E).

The 2011 amendment, effective July 1, 2011, substituted "Reserved" for the former provisions of paragraph (8), which read: "'Motor carrier of property' means a motor common or contract carrier engaged in transporting property, except household goods, in intrastate commerce in this state."; in subparagraph (9)(A), substituted "persons or household goods or engaged in the activity of nonconsensual towing pursuant to Code Section 44-1-13 for hire over any public highway in this state" for "persons or property for hire over any public highway in this state and not operated exclusively within the corporate limits of any city", and added the last sentence; in subparagraph (9)(B), substituted "household goods" for "property", and inserted "or engaged in the activity of nonconsensual towing pursuant to Code Section 44-1-13," in the first sentence; in division (9)(C)(ii), deleted "drays, trucks, buses, and other motor vehicles" following "Taxicabs" in the first sentence and deleted the period following the first sentence, deleted the second through fourth sentences, relating to the exception of regulation by the governing authorities and tow trucks engaged in consensual towing, respectively, and added "the provisions of this division notwithstanding, vehicles and the drivers thereof operating within the corporate limits of any city shall be subject to the safety regulations adopted by the commissioner of public safety pursuant to Code Section 40-1-8" at the end of the present first sentence; substituted "Reserved" for the former provisions of division (9)(C)(v), which read: "Granite trucks, where transportation from quarry to finishing plant involves not crossing more than two counties"; substituted "Reserved" for the former provisions of division (9)(C)(vi), relating to RFD carriers and star-route carriers; substituted "Reserved" for the former provisions of division (9)(C)(vii), relating to motor trucks of railway companies which perform pick-up and delivery; substituted "Reserved" for the former provisions of division (9)(C)(ix), relating to single source leasing; substituted "Reserved" for the former provisions of division (9)(C)(x), relating to motor vehicles engaged exclusively in the transportation of agricultural or dairy products; substituted "subparagraph" for "paragraph" at the end of division (9)(c)(xiii); substituted "Reserved" for the former provisions of paragraph (11), relating to the definition of "permit"; and substituted "Reserved" for the former provisions of paragraph (13), relating to the definition of "private carrier"; and substituted "commission" for "state revenue commissioner" at the end of paragraph (18).

The 2012 amendments. The first 2012 amendment, effective July 1, 2012, rewrote this Code section. The second 2012 amendment, effective May 1, 2012, part of an Act to revise, modernize, and correct the Code, substituted "renter's" for "rentor's" in subparagraph (5.1)(C). See Editor's notes regarding the effect of these amendments.

- 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 Natural Resources" in the last sentence of division (9)(C)(x).

- 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.

Ga. L. 2012, p. 775, § 54(e)/HB 942, not codified by the General Assembly, provides: "In the event of an irreconcilable conflict between a provision in Sections 1 through 53 of this Act and a provision of another Act enacted at the 2012 regular session of the General Assembly, the provision of such other Act shall control over the conflicting provision in Sections 1 through 53 of this Act to the extent of the conflict." Accordingly, the amendment to subparagraph (5.1)(C) of this Code section by Ga. L. 2012, p. 775, 878, § 46(1)/HB 942, was not given effect.

- For article commenting on the 1997 amendment of this Code section, see 14 Ga. St. U.L. Rev. 264 (1997).

ANALYSIS

• General Consideration
• Common Carriers
• Motor Contract Carriers
• Passengers

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 former 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).

- City ordinances regulating the fares licensed limousine service companies may charge for 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).

- When 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 the insurer because the insurer was outside the ambit of former O.C.G.A. § 46-7-12 (see O.C.G.A. § 40-1-112). Smith v. Southern Gen. Ins. Co., 222 Ga. App. 582, 474 S.E.2d 745 (1996).

Insurer failed to meet its burden of showing that a company it insured was not a "motor common carrier" or a "motor contract carrier" under O.C.G.A. § 46-1-1(9)(C) when a tractor-trailer it owned was involved in an accident because, although it showed that the tractor-trailer was being used to haul timber products when the accident occurred, it did not show that the tractor-trailer was used exclusively for that purpose, and the trial court erred when it granted the insurer's motion for summary judgment on plaintiff's personal injury claims. Jarrard v. Clarendon Nat'l Ins. Co., 267 Ga. App. 594, 600 S.E.2d 689 (2004).

- In a wrongful death case, a motor carrier's insurer was subject to direct suit under the direct action statute, former O.C.G.A. § 46-7-12(c) (see O.C.G.A. § 40-1-112). The exemption for motor vehicles used exclusively to carry dairy or agricultural products, O.C.G.A. § 46-1-1(9)(C)(x), did not apply because the insured had used a tractor to haul other products besides logs, although the insured had hauled logs exclusively in the weeks prior to the accident. Occidental Fire & Cas. Co. of N.C. v. Johnson, 302 Ga. App. 677, 691 S.E.2d 589 (2010).

Cited in Savannah T. & I. of H. Ry. 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); Axcan Scandipharm v. Schwan's Home Serv., 299 Ga. App. 49, 681 S.E.2d 631 (2009); Southern LNG, Inc. v. MacGinnitie, 294 Ga. 657, 755 S.E.2d 683 (2014).

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. 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).

- 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).

- 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).

- 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).

- 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).

- 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. Harrison, 172 Ga. 65, 157 S.E. 499 (1931).

- 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).

- 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).

- 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).

- 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).

- 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).

- 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 indifferently, 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 1996 amendment, adding division (9)(c)(xv)).

- 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 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 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).

- 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. Co., 127 Ga. 520, 56 S.E. 624, 10 L.R.A. (n.s.) 909 (1907).

- 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).

- 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).

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).

§ 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).

§ 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).

- 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).

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

- Motor carrier's noncompliance with the carrier's responsibility to obtain a permit had no impact on the carrier's status as a Georgia "motor carrier of property" under O.C.G.A. § 46-1-1(8) because while the failure to get a permit rendered the motor carrier in violation of the Act, that failure did not render the motor carrier any less a "motor carrier of property" under applicable law. Sapp v. Canal Ins. Co., 288 Ga. 681, 706 S.E.2d 644 (2011).

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).

- 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).

- 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).

- 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).

- 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).

- 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 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

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.

- 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.

- 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.

- Independent contractor transporting materials by motor vehicle on public highways and performing ancillary services such as spreading or placing materials at delivery site are subject to regulation by the commission. 1962 Op. Att'y Gen. p. 438.

- 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.

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.

20C Am. Jur. Pleading and Practice Forms, Public Utilities, § 3.

- 13 C.J.S., Carriers, §§ 2, 495, 499, 502.

- Carriers: attempt to have child transported without paying fare, 1 A.L.R. 1451.

Status of passenger in ordinary coach who enters Pullman coach for temporary purpose, 18 A.L.R. 71.

Persons or corporations engaged in local transportation of goods as common carriers, 18 A.L.R. 1316.

Federal control of public utilities, 19 A.L.R. 678; 52 A.L.R. 296.

Validity of statute or ordinance in relation to moving vans and moving operations, 20 A.L.R. 210.

Duty and liability to passenger temporarily leaving train, 35 A.L.R. 757; 61 A.L.R. 403.

Powers of federal and state governments respectively as regards railroad stations, 37 A.L.R. 1372.

Company engaged exclusively or mainly in furnishing switching service as carrier engaged in interstate commerce, 38 A.L.R. 1147.

Regulating issuance of securities by public utilities through Public Service Commissions, 41 A.L.R. 889.

Liability of carrier for injury to passenger by car door, 41 A.L.R. 1089.

Passenger's waiver of right to seat, 42 A.L.R. 156.

One operating bus or stage as common carrier, 42 A.L.R. 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 A.L.R. 996; 106 A.L.R. 1156.

Company furnishing switching service as a common carrier, 54 A.L.R. 620.

Logging or mining road as a common carrier, 67 A.L.R. 588.

Carrier's liability as affected by improper packing or preparation of goods for shipment, 81 A.L.R. 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 A.L.R. 760.

Persons hauling commodities for co-operative purchasing or marketing associations, or their members, as common carriers, 98 A.L.R. 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 A.L.R. 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 A.L.R. 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 A.L.R. 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 A.L.R. 1293.

What carriers are within statutory definition of common carriers by motor vehicle, 161 A.L.R. 417.

Car pool or "share-the-expense" arrangement as subjecting vehicle operator to regulations applicable to carriers, 51 A.L.R.2d 1193.

Air carrier as common or private carrier, and resulting duties as to passenger's safety, 73 A.L.R.2d 346.

Share-the-ride arrangement or car pool as affecting status of automobile rider as guest, 10 A.L.R.3d 1087.

Liability for injury to or death of passenger from accident due to physical condition of carrier's employee, 53 A.L.R.3d 669.

What is "conveyance," "passenger conveyance," or "public conveyance" within coverage of accident policy, 60 A.L.R.3d 858.

Who is "fare-paying passenger" within coverage provision of life or accident insurance policy, 60 A.L.R.3d 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 A.L.R.3d 950.