Martin v. Wallace

• Decision Date: 31 December 1869
• Citation: 40 Ga. 52
• Parties: NANCY MARTIN, plaintiff in error. v. CAMPBELL WALLACE,Superintendent Western & Atlantic Railroad, defendant in error.
• Court: Georgia Supreme Court

40 Ga. 52

NANCY MARTIN, plaintiff in error. v. CAMPBELL WALLACE, Superintendent Western & Atlantic Railroad, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, December Term, 1869.)

Railroads. Liability for killing Confederate States Soldier. Decided by Judge Pope. Fulton Superior Court. November Term, 1869.

Nancy Martin, in 1866, sued Wallace, as Superintendent of the Western and Atlantic Railroad, for killing her husband. She averred that he was killed by the careless running of the trains of said road on the 14th of September, 1863, and, in count, that he was a passenger on said road *at the time, having paid his fare, and in another count, that he was a soldier and officer of the Confederate States army, going on defendant's train by order of his superior officer and that his fare was paid by the Confederate States. The defendant plead the general issue, that Martin was, at the time a soldier in the army of the Con-federate States, aiding and abetting the enemies of the United States, and then was in armed hostility to the United States, resisting its lawful authority, and going to the point of conflict between said armies to aid the enemies of the United States, and that at that time the legal government of Georgia was displaced, and the employees of said railroad were not the employees of the State, and the State was not liable for their misconduct in managing said road, and that each and all of said employees were then in rebellion and insurrection against the Government of the United States.

The killing on said day, by a collision, produced by the carelessness and misconduct of said employees, the industrious habits of Martin, and what he would make per annum if alive, as well as that his wife was dependent upon him for a support, were proved. The witness who testified to those facts also testified that Martin was at the time captain of a Tennessee regiment of infantry in the said Confederate army, taking his command to the battle-field of Cickamauga, under orders from his commanding officer, and the witness supposed that he intended engaging in said battle.

The plaintiff having closed, defendant's counsel moved for a non-suit, upon the ground that Martin's wife could not recover for the death of her husband, he having been killed while going to fight against the armies of the United States. The non-suit was granted, and that is assigned as error.

Baugh & Garlingon, for plaintiff in error.

L. E Bleckley, P. L. Mynatt, for defendant in error.

*BROWN, C. J.

The declaration in this case distinctly alleges that the deceased husband of the plaintiff "was a soldier and officer in the army of the Confederate States, owing service, fidelity and allegiance to the same;" that he was ordered by his superior officer to enter the cars of the Western and Atlantic Railroad, and proceed to a point on that road; that the Superintendent of the road was carrying soldiers on said road for hire and reward, paid by the authorities of said Confederate States, and that, therefore, and in consideration of the hire and reward so paid and agreed upon, and transportation furnished and paid for by said Confederate States Government to said defendant,...