Gaston v. W. U. Tel. Co.

• Decision Date: 18 June 1920
• Docket Number: 297.
• Citation: 266 F. 595
• Parties: GASTON v. WESTERN UNION TELEGRAPH CO.
• Court: U.S. District Court — Northern District of Georgia

266 F. 595

GASTON v. WESTERN UNION TELEGRAPH CO.

No. 297.

United States District Court, N.D. Georgia.

June 18, 1920

W. A James and Westmoreland & Smith, all of Atlanta, Ga., for plaintiff.

Brewster Howell & Heyman, of Atlanta, Ga., for defendant.

SIBLEY District Judge.

This suit, removed from the state court, is brought by the administrator of a deceased lineman of the telegraph company who was killed while on duty in Florida. The petition discloses that he left no wife, child, or other dependent and the suit is brought for the benefit of his estate, under a statute of the state of Florida (Comp. Laws 1914, Sec. 3146) so permitting.

A general demurrer contends, first, that the enforcement of this right of action is contrary to the public policy of the state of Georgia; and, second, that no cause of action is set forth.

1. The statutes of the state of Georgia respecting homicides give a right of action to widow, husband, children, parents, and, in the case of employes of railroads, to any other dependent relatives. Where there are no such dependent persons, no right of action is given a representative in behalf of the estate of the deceased. The question is: Does this difference in the statutes render it impolitic for the courts of the state of Georgia to enforce this right of action.

This deceased was exercising his employment under the Florida statute. The rights of his estate, as well as the liabilities of the defendant, were presumably contemplated in the employment. There is certainly nothing immoral or contrary to natural right in the wrong doer making good the consequences of his wrong to whomever it may have affected, whether dependent on the deceased or not. So far as public policy in Georgia is concerned, it is true that this state inherited the common law, which gave no right of action whatever in cases of homicide. One of the common-law reasons, 'actio personalis moritur cum persona,' though not strictly applicable where a cause of action is created by a statute, instead of preserving the one that the deceased had, has been greatly modified in Georgia; for here, in the main, actions filed for torts do survive to the representative of the plaintiff and against that of the defendant (Park's Code, Sec. 4421), and in the case of homicides survive to the successive beneficiaries named in the statute (Park's Code, Sec. 4424).

Another reason given is the public policy of having prosecution precede civil reparation. This policy obtained in Georgia, but the effect of it was held not to destroy or merge, but simply to suspend, a right of action arising out of treason or felony (Adams v. Barrett, 5 Ga. 411; Neal v. Farmer, 9 Ga. 555); and it extended only to homicides that were felonious at common law (Dacy v. Gay, 16 Ga. 203), and did not affect a master's cause of action for loss of service by the homicide of his servant, where no felony was committed (Shields v. Younge, 15 Ga. 349, 60 Am.Dec. 698). In this case the doctrine was extensively examined, and it was decided that the failure to permit an action for homicide at common law was rather due to the fact that in cases of felony, which all homicides then were, all of the offender's goods were forfeited and a civil suit would have been idle, than to anything else.

The policy of prosecution before compensation was carried into the Code of Georgia, and in the Code of 1882 (section 2970) it appears with the proviso added in 1879:

'That this section shall not apply to torts committed by railroad corporations, or other incorporated companies or their agents, or employes, nor shall the same apply to natural persons.'

The whole section, thus rendered meaningless, has been dropped from later Codes, and it is now the policy of Georgia to require no prosecution. In point of fact, beginning with South Carolina Railroad Co. v. Nix, 68 Ga. 572, and Central Railroad v. Swint, 73 Ga. 651, and continuing to the present time, the homicide statutes of other states have been enforced in this almost without question. In South Carolina Railroad Co. v. Thurman, 106 Ga. 804, 32 S.E. 863, the difference in the homicide statutes of South Carolina relating to negligence was considered, and the rule of public policy announced for the state of Georgia was adopted from the opinion of the Supreme Court of the United States in Northern Pacific Railroad Co. v. Babcock, 154 U.S. 190, 14 Sup.Ct. 978, 38 L.Ed. 958, thus:

'To justify a court in refusing to enforce a right of action which accrued under the law of another state, because against the policy of our laws, it must

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