Macon v. Davis

• Decision Date: 31 January 1859
• Citation: 27 Ga. 113
• Parties: Macon and Western Railroad Company, plaintiff in error. vs. James M. Davis, defendant in error.
• Court: Georgia Supreme Court

27 Ga. 113

Macon and Western Railroad Company, plaintiff in error. vs. James M. Davis, defendant in error.

Supreme Court of the State of Georgia

JANUARY TERM, 1859.

Case, in Bibb Superior court. Tried before Judge Lamar, at November Term, 1858.

This was an action by James M. Davis, as administrator of Willis Boon, deceased, against the Macon and Western Railroad Company, to recover the value of a negro man slave and a carriage. The slave killed, and the carriage destroyed by the cars, running on defendant\'s railroad.

All the facts necessary to a full understanding of the points adjudicated are stated in the opinion of the Court.

By the Court.— McDonald, J., delivering the opinion.

James M. Davis, as administrator on the estate of Willis Boon, deceased, instituted an action in the Superior Court of Bibb county, against the plaintiff in error, for the recovery of damages for the destruction of a rockaway carriage, and killing a negro man slave, the property of his intestate, by the conducting and running the engine and cars of said plaintiff in error, forcibly and illegally against and upon and over the said carriage and slave.

On the trial of the cause, the jury rendered a verdict in favor of the defendant in error, whereupon the plaintiff in error, who was defendant in the Court below, moved for a new trial on several grounds, to wit:

1st. Because the verdict of the jury is contrary to evidence and without evidence to sustain it.

2d. Because the verdict of the jury is decidedly and strongly against the weight of the evidence.

3d. Because the verdict of the jury is against the law in said case and against the justice of the case.

4th. Because the Court erred in admitting in evidence the letters of administration of the plaintiff, and also in admitting in evidence the order or judgment of the Court of Ordinary of Crawford county, and also in allowing the plaintiff to amend his declaration by inserting the name of Henrietta A. Boon as co-plaintiff, and the passing an order that the ease proceed in the name of James M. Davis alone.

5th. Because the Court erred in ruling out any of the evi-dence of Dr. D. B. Searcy, all being ruled out except the seventh interrogatory.

6th. Because the Court erred in allowing the plaintiff to introduce in evidence and prove the injury done to other persons than the negro June, and because the Court erred in not ruling out all the answers in the interrogatories of Mrs. Winn and Mr. Snow, and other witnesses, proving the injury to Mrs. Winn and her children.

7th. Because the Court erred in its charge to the jury.

The presiding Judge in the Court below, on hearing argument on this motion, refused the new trial, and counsel for the defendant excepted to his judgment thereon, and assigns for error:

1st. That the Court admitted in evidence on the trial the letters of administration of James M. Davis and Henrietta A. Boon, upon the estate of Willis Boon, deceased, together with the order or judgment of the Ordinary of Crawford county, discharging Henrietta A. Boon from the administration.

2d. In admitting evidence upon motion of the plaintiff on the trial of injuries done to other persons than the slave June, to wit: injuries done to Mrs. Winn and her children.

3d. In ruling out the testimony of Dr. Daniel Searcy, proving the statements and sayings of Mrs. Winn, taken by commission.

4th. In overruling the motion of counsel for the defendant for a new trial on each and all the grounds taken in their motion for a new trial.

This Court, at the last June Term, at this place, decided the point made in the second assignment of error, and held the identical evidence admissible in the case of Malinda Winn vs. The Macon and Western Railroad Company. We consider the decision in that case, as decisive of this point, and without further remark, I will pass on.

The first assignment of error is predicated on thejudgment of the Court below, overruling objections made, to the admission in evidence of the letters of administration granted to the plaintiff and Henrietta A. Boon, on the estate of Willis A. Boon, deceased, and the order of the Court of Ordinary of Crawford county. The action was instituted originally by Davis, as administrator of Willis Boon, for the recovery of damages for the destruction of property belonging to his intestate. On the trial of the cause, he tendered in evidence the said letters of administration and an order passed by the Ordinary of Crawford county, reciting that Henrietta A. Boon had intermarried with Adolphus A. Purifoy, who had failed to apply for letters, and revoking her letters, and discharging her from liability as administratrix. When this evidence was demurred to, the plaintiff\'s counsel moved that his declaration be amended by inserting the name of Henrietta A. Boon as administratrix, jointly with the said James M. Davis, as original plaintiff, so as to perfect the record. To this amendment the counsel for the defendant objected, which objection was overruled by the Court, and the defendant excepted. The plaintiff\'s counsel then moved that the cause proceed in the name of James M. Davis alone, as administrator, to which the defendants\' counsel objected. The Court overruled the objection and the defendant excepted.

The whole of this proceeding, amending the declaration, by adding Henrietta A. Boon as a party plaintiff; the order of the Ordinary of Crawford county revoking her letters of administration, and the order of. the Court below, directing the cause to proceed in the name of James M. Davis alone, as administrator, was useless. If it affected the case in the slightest degree, we might, perhaps, consider whether it was strictly regular and legal to have added a party plaintiff to the case by way of amendment. We do not say that it would not be allowable under our very liberal statute of amendments, when it would prevent an injustice, or save costs. We are inclined to think that the Ordinary of Crawfordcounty made a very liberal use of his power, and perhaps exceeded his authority, when he revoked the letters of administration of Henrietta Boon, and discharged her from liability as administratrix, on account of her marriage. Her letters abated by reason of her marriage, during coverture. They abated by act of the law and not by the act of the Ordinary, and no action by him was necessary to give effect to the abatement. I apprehend, that by the death of her husband, during her lifetime, her letters of administration would be revived. If the suit had been originally instituted in the joint names of herself and Davis, as administrators, nothing more was necessary, to enable Davis, as administrator, to prosecute the suit in his own name as administrator, than to have suggested of record her marriage, and the consequent abatement of her letters of administration. But why all this proceeding? The suit was brought by Davis alone as administrator. That such was the fact, was no sufficient ground of demurrer to the joint letters of administration as evidence. They showed that Davis was administrator. "If one of several executors or administrators bring an action of debt or assumpsit, or in tort, it is settled that the defendant can only take advantage of the non-joinder of the co-executor or co-administrator, by pleading in abatement, after oyer of the probate or letters of administration, that the other executor or administrator therein mentioned is alive, and not joined in the action." 1 Chit, on Pl. 22. The defendant pleaded the non-joinder of Henrietta Boon, and, in form, the plea is a plea in bar, and on that account ought not to be considered a good plea in abatement. But it is a dilatory plea, and if sustained, and the cause were dismissed, it could be renewed in the name of both administrators. The truth of the plea is not sworn to, and the Judiciary Act declares that "no dilatory answer shall be received or admitted, unless affidavit be made of the truth thereof." Cobb 486. The cause ought, therefore, to have proceeded to trial in the name of Davis as administrator, in whose nameit was instituted, even if the other proceedings were irregular, which we by no means hold.

The conversation in regard to the cause of the injury which took place between Dr. Searcy and Mrs. Winn, or in the hearing of Dr. Searcy, was properly rejected. It was not a part of the res gestae. It was a considerable time after the act which caused the damage, and she was a competent witness. In my opinion, it is extending the principle a great way to allow the declarations of a person to be given in evidence as a part of the res gestae, made at any point of time, who is not a party nor the agent of a party, and who is living, and whose evidence may be procured by reasonable diligence.

The next assignment of error is on the refusal of the ' Court to grant a new trial on each and all the grounds taken in the motion. Among the grounds taken, is one that the Court erred in its charge to the jury. There is no error assigned on this charge, plainly and distinctly set forth, as required by the statute. Acts '55 and '56, 201. Indeed, no special objection was urged in the argument before us, and in looking through the charge, a majority of the Court think that the law was fairly submitted to the jury. Before the jury could have found a verdict for the plaintiff under the charge, they must have found that if the plaintiff or his servant was not free from fault, yet the defendant by the exercise of reasonable care and diligence could have prevented the injury or collision, and neglected to do so; or they must have found that if the employees of the railroad saw the carriage of the plaintiff approaching dangerously near, they could have stopped the train, and neglected to do so, so as to prevent the collision, and that the plaintiff at the time used ordinary diligence and precaution to escape the difficulty. One member of the Court is of opinion that the presiding Judge ought to have...