Dade Coal Co. v. Haslett

• Decision Date: 28 October 1889
• Citation: 10 S.E. 435,83 Ga. 549
• Parties: DADE COAL CO. v. HASLETT.
• Court: Georgia Supreme Court

10 S.E. 435

83 Ga. 549

DADE COAL CO. v. HASLETT.

Supreme Court of Georgia

October 28, 1889

Error from city court of Atlanta; VAN EPPS, Judge.

Julius L. Brown, for plaintiff in error.

R. J Jordan and John T. Glenn, for defendant in error.

BLANDFORD J.

1. There was a general demurrer to the declaration filed by the defendant in error against the plaintiff in error, which was overruled by the court, and the plaintiff in error insists that this was error, because, as it appeared that the plaintiff in the court below had been convicted of a felony and that the injury he complained of was received by him while he was in confinement in the penitentiary, he was civiliter mortuus, and could not maintain an action for the injury, although he had received a pardon, and had been thereby restored to all his rights of citizenship before the commencement of this action. We do not think that this position of the learned counsel for the plaintiff in error is sound. We are aware that at the common law, when one was convicted of felony or treason, he forfeited all his rights of citizenship, and that he was deemed to be civiliter mortuus; but, as these consequences do not follow in this state by conviction of felony, it would seem that he might maintain an action for the injuries he received, even though at the time of receiving the same he was a felon, and in confinement. In the case of Cannon v Windsor, 1 Houst. 143, it was held that "the maxim of civiliter mortuus, on a conviction for felony, does not apply in this state," (Delaware,) and that, against one who had been convicted of the crime of murder, and was under sentence of death, an action could be maintained for the support and maintenance of his minor children. It is stated as a principle of the common law that a person convicted of felony "may sue for any personal wrong done to him before or after the commencement of the period of his disability, e. g., for an assault." Dicey, Parties, 3, citing Barnard's Case, Owen, 22; Com. Dig. "Forfeiture." B, 2. "A right of action for damages is not forfeited to the crown upon a conviction for felony." Flemming v. Smith, 12 IR.C.L. 404; Mews, Com; Law Dig. "Forfeiture." Besides, in Ex parte Garland, 4 Wall. 380, the supreme court of the United States held that a pardon reaches both the punishment prescribed for the offense and the guilt of the offender, and, when the pardon is full, it releases the punishment, and blots out of existence the guilt, so that, in the eye of the law, the offender is as innocent as if he had never committed the offense. So we are of the opinion that the general demurrer to the declaration should have been overruled.

2. This action was brought against the Dade Coal Company, to recover damages which it is alleged that company wrongfully inflicted upon the plaintiff, the defendant in error here. There was a plea in abatement filed by the defendant,...