Macon & Western R.R. v. Davis

• Decision Date: 28 February 1853
• Docket Number: No. 11.,11.
• Court: Georgia Supreme Court
• Parties: Macon & Western Railroad, plaintiffs in error. vs. James M. Davis, administrator of Willis Boon, defendant.

13 Ga. 68

Macon & Western Railroad, plaintiffs in error. vs. James M. Davis, administrator of Willis Boon, defendant.

No. 11.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1853.

Award, in Bibb Superior Court. Tried before Judge Powers. November Term, 1852.

On the 14th day of December, 1851, a negro boy was killed, and a carriage destroyed, property belonging to the estate of Willis Boon, by a train of cars running on the Macon & Western Railroad, in the County of Monroe. James M. Davis, as administrator of said estate, filed his petition, under the Acts of 1847 and 1850, before D. E. Haiston a Justice of the Peace for the 480th district G. M. and town of Forsyth, praying for the appointment of arbitrators, to award the damages done to said estate, by the destruction of said property.

John H. Thomas, Allen Cochran and Jonathan Johnson, were appointed arbitrators, who on the 3d day of April, 1852, rendered an award of $1,050, as damages, against said Railroad Company. From this award, the Company entered an appeal to the Superior Court of Bibb County, which came on to be tried at the November Term, 1852. On the trial, plaintiff offered in evidence, a record from the County of Monroe, containing the petition of Davis, and the affidavit thereto attached, the order of D. E. Haiston appointing the arbitrators, the award of the arbitrators, and the certificates of Haiston and Willis Carry, Clerk of the Superior Court of Monroe County.

To the introduction of this testimony, counsel for the Company objected, upon the following grounds:

1st. Because the Act and amended Act, under which said proceedings were had, were unconstitutional and void.

2d. Because the record does not show that the arbitrators resided in the district where the proceedings were had, and were freeholders.

3d. Because it does not appear by the record, that the notice required by the Act to be filed with the Clerk of the Superior Court, had not been filed.

4th. Because the record does not show that an agent of the Company did not attend at their depot, as required by the Statute.

5th. Because the record does not show that the depot at Forsyth, was the depot to which the cars were going when the alleged injury happened.

6th. Because the Statute under which this proceeding was had, does not give this summary remedy for injuries done to negro property.

7th. Because the record does not show that the plaintiff had complied with all the requirements of the Statute.

8th. Because the defendants had no notice of said proceedings.

All of which objections were overruled by the Court, and the evidence admitted, and counsel for defendant excepted.

Counsel for the defendant then proposed to prove by the evidence of John Snaw, taken by interrogatories, that there was no carelessness or negligence on the part of the defendant, and that the injury done to the property of the plaintiff's intestate, was the result of his own negligence.

Counsel for plaintiff objected to the evidence.

The Court sustained the objection, and ruled out the evidence, deciding "that the award was conclusive upon the defendant, as to every thing, except the amount of damage sustained by the plaintiff."

To which decision counsel for defendant excepted, and upon these exceptions have assigned error.

The following are the sections of the Act of 1847, under which the proceedings were instituted:

Sec. I. Be it enacted, that the several Railroad Companies of this State shall be held liable in law for any damage done to live stock or other property (to the owner or owners thereof) by the running of the cars or locomotives of said Companies on their roads respectively.

Sec. II. For the better ascertainment and settlement of such damage hereafter, it shall be the duty of each of said Companies to appoint an agent or agents to attend at the depot ofthe Company on each Justice\'s Court day, to hear any complaint for damages as aforesaid, he putting a notice in writing at the district Court house door of his attendance and readiness to do so, by or before mid-day; and in case of disagreement between such agent and the complainant, either as to the fact of such damage being done, or the amount of the same, they may each choose one disinterested freeholder of the district, which two shall choose a third, who, after being sworn before a Judge or Justice of the Peace, truly and impartially to estimate the damages in the case submitted to them, shall estimate and assess such damages, and give their award in writing; and upon the presentation of such award by the person so aggrieved, his agent or attorney, to such agent of the Company, or the president or cashier of any such Company, and a refusal to pay the amount of the same to the person so presenting it, or his order, such person so damaged or aggrieved, may commence his suit against such company, in the proper County and Court, for the damages aforesaid, and upon the trial of such suit, the written award shall be conclusive of such damages aforesaid, and read as evidence in said case; and upon the trial of the case (which shall be at the first term of the Court) the Jury shall find for the plaintiff the amount of the damage to the property, the Rail-road fare to the Court and back, and such damage for time and trouble, not less than fifty per cent, on the damage for the property, as to them may seem reasonable and just; Provided, if the Railroad agent does not attend and select a freeholder as before provided, then one of the Justices of the Peace shall select one freeholder, the complainant one, and they two, one other, which three shall assess the damage and award as aforesaid.

Sec. III. The Company shall notify the Magistrate of the district and the Clerk of the Superior Court of the County, of the appointment of such agent as is before provided for, and such Clerk shall record the notice served on him, and receive one dime for recording the same.

Sec. IV. The engineer shall render to the agent at each depot, an account of all the stock or other property damagedbetween that and the last depot, which account the agent shall enter in a book to be kept for that purpose by him, which book shall be at all times open to any person wishing to inspect the same.

Sec. V. Provides that the engineer before entering on his duties, shall be sworn to render a true account to the agent at the depot of all property damaged, and that any Company employing an engineer without being sworn, shall forfeit $5 per mile to any land owner, through whose lands the cars may run, for each and every trip.

Sec VI. Requires the complainant to swear that he has sustained damage without fraud or combination directly or indirectly on his part, and that this affidavit shall be attached to the award before it can be read in evidence.

Sec. VII. Provides for damages against the complainant, if on the trial it shall appear to the Jury, that he practised or attempted to practise fraud on the Company in relation to the property damaged.

The following is the Act of 1850, amending the Act of 1847:

Sec. 1. Be it enacted, That in all cases where an award shall be made in conformity with the provisions of the second section of said Act, the same shall be filed in the Clerk's office of the Superior Court of the County in which the principal officer of the Railroad Company may be; and it shall be the duty of such Clerk to make out and serve a copy thereof on the President of said Company, or by leaving it at said Company's office, within ten days after the filing of said award; and within twenty days after such service, the Clerk shall issue execution for the amount of said award, and the costs attending said filing, copy and service against said Company, unless the said Company by one of its officers or its attorney, shall enter an appeal in the usual manner, on paying costs and giving security; in which case said claim for damages shall stand for trial before the special Jury at the first term after such appeal, upon the same terms, restrictions and liabilities as apply to and govern other appeal cases, and judgment and execution shall be rendered and issued accordingly.

C. B. Cole, for plaintiffs in error.

S. T. Bailey, for defendant in error.

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

The proceedings out of which spring the questions for review in this record, were taken under the Acts of 1847 and 1850. A copy of the Act of 1850, and so much of the Act of 1847, as applies to the case, are given in the Reporter's brief. See Cobb's N. D. 397, 398, 399

It will be seen by reference to the Act of 1847, that the Legislature has provided therein a summary mode of procedure, and an extraordinary tribunal, clothed with special jurisdiction; for the purpose, in the first instance, of ascertaining the damage done to live stock or other property, by the running of the cars and locomotives of the Railroad Companies of this State. For the better ascertainment and settlement of such damages, it enacts that it shall be the duty of each of said Companies to appoint an agent or agents, to attend at the depot of the Company on each Justices' Court day, to hear any complaint for damages done to live stock or other property by the running of the cars and locomotives; that the agent shall put a notice in writing at the district Court house door of his attendance and readiness to hear such complaint, by or before mid-day of the day on which the Justices' Court of the district is held; that the Company shall notify the Magistrate of the district, and the Clerk of the Superior Court of the County of the appointment of their agent, which notice the Clerk is required to record; that the engineer of the Company shall render to the agent at each depot, an account of all the stock or other property damaged between that and the last depot, and that the agent shall enter in a book kept for that purpose the account so rendered, which shall be at all times open to the inspection of all persons; that the...