Mcdonald v. The Eagle

• Decision Date: 28 February 1882
• Citation: 68 Ga. 839
• Court: Georgia Supreme Court
• Parties: McDonald. vs. The Eagle and Phenix Manufacturing Company.

68 Ga. 839

McDonald. vs. The Eagle and Phenix Manufacturing Company.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1882.

[By reference to 67 Ga. 763, it will be seen that the original decision in this case was withdrawn from the reporter's hands by Justice Speer, who stated that he handed it to Mr. Peeples, of the clerk*s office for return to the reporter; that Mr. Peeples had no recollection of such an occurrence and that it never was returned to the reporter. Since the publication of 67th Ga, it was discovered among a lot of waste papers which were gathered up from the court room. It is now published at once upon its discovery.]

Damages. Negligence. Master and Servant. Husband and Wife. Before Judge willis. Muscogee Superior Court. May Term, 1881.

Charlotte McDonald sued the Eagle and Phenix Manufacturing Company to recover damages for the homicide of her husband. On demurrer the court dismissed the case, and plaintiff excepted. The declaration was as follows:

"The petition of Charlotte McDonald, showed that the Eagle and Phenix Manufacturing Company, a corporation of the state of Geor-gia, resident in the county of Muscogee, has damaged your petitioner in the sum of $10,000.00.

For that heretofore, to-wit, on the— day of June, 1879, at the request of defendant, Absolom McDonald, who was her lawful husband, and up to the time the injuries hereinafter stated were received by him, was a carpenter by trade, forty-seven years old, in good health and of a strong constitution, and whose services were worth an average of two dollars per day, was employed by the said defendant as an ordinary workman to aid in building a dye house in said county of Muscogee, the said defendant undertaking to furnish a careful, prudent and skillful superintendent to direct said work, and competent and careful laborers to aid in constructing the same, and especially to manage a derrick and ropes, tackle and machinery attached to said derrick, by which large timbers were to be hoisted to a great elevation, which said timbers your petitioner's said husband was to adjust and put in place in the frame work of said building, when carefully conveyed to him by means of said derrick and ropes, tackle and machinery attached by said laborers, under the orders and direction of said superintendent. Yet the defendant, not regarding its duty, placed in charge of said derrick and ropes, tackle and machinery attached, a careless and negligent superintendent, and one or more careless, incompetent and negligent laborers, and by want of due care and diligence, and by negligence, so managed the said derrick and ropes, tackle and machinery used to hoist said heavy timbers, as to knock the prop which supported her said husband from under him, and precipitate him from a great height upon some timbers near the ground, when a large piece of timber, suspended by means of said derrick, fell upon him, by which said fall and fall of said heavy piece of timber her said husband was crushed, bruised, wounded, and so hurt that he languished in great pain, and died by reason of said wounds within twelve hours afterwards, and from thence and for all time deprived your petitioner of the companionship, comfort, labor and services of her said husband. That at the time said fall occurred, which so occasioned the death of her said husband, he was faithfully, cautiously, diligently, and without any fault on his part, performing his duty under the direction of defendant.

Your petitioner was thereby forced to lay out and expend divers sums of money, in the whole amounting to one hundred dollars, for attention in sickness and burial expenses of her said husband, while she endures inconsolable grief; and has sustained other damages, to the value of ten thousand dollars."

Smith & Russell, for plaintiff in error.peabody & brannon, for defendant.

Jackson, Chief Justice.

This was a general demurrer to plaintiff's declaration, in which she declared against the Eagle and Phenix Manufacturing Company for the homicide of her husband. The demurrer was sustained and the action dismissed, and this judgment is assigned as error.

This is an action authorized by statute, and the statute is codified in section 2971 of our Code. It authorizes the widow to sue for the homicide of her husband. The term homicide, used in the statute, means the killing of the husband in some unlawful manner. Code, §4313. Of course it cannot mean justifiable homicide, for it would be out of all reason to permit a recovery of damages from a person who had committed no unlawful act, but whom the law justified in doing what he did. The statute, therefore, means some grade of unlawful homicide. It is not alleged in the declaration that this corporation voluntarily through any agent or servant killed this man, nor is it averred that the homicide occurred by criminal negligence on the part of the company or any of its agents. The facts alleged do not show that...