Phelps v. Pollard, 26776.

CourtUnited States Court of Appeals (Georgia)
Citation197 S.E. 47,57 Ga.App. 855
Docket Number26776.
Decision Date26 April 1938

197 S.E. 47

57 Ga.App. 855


No. 26776.

Court of Appeals of Georgia, First Division

April 26, 1938

Syllabus by the Court.

Evidence held not sufficient to support a finding that the defendant railroad had been guilty of a willful and wanton mutilation of the body of the plaintiff's husband. The judge did not err in granting a nonsuit.

Error from Superior Court, Randolph County; C. W. Worrill, Judge.

Suit by Mrs. I. L. Phelps against H. D. Pollard, receiver of the Central of Georgia Railway Company, for willfully and wantonly running over and mutilating the body of plaintiff's husband. A judgment of nonsuit was entered, and the plaintiff brings error.


Olin Hammock, of Shellman, for plaintiff in error.

H. A. Wilkinson, of Dawson, H. W. Johnson, of Savannah, and J. W. Harris, of Cuthbert, for defendant in error.

GUERRY, Judge.

This is the second appearance of this case in this court. See Pollard v. Phelps, 56 Ga.App. 408, 193 S.E. 102. The court there held that the plaintiff's petition set forth a cause of action, as against general demurrer, for the willful and wanton mutilation of the body of plaintiff's husband by the defendant, but further held that the verdict rendered in favor of the plaintiff was not supported by any evidence, in that it was not shown that the defendant willfully and wantonly committed the acts complained of. Upon the second trial (the subject of the present writ of error), the evidence for the plaintiff was substantially the same as that introduced on the former trial, with the sole exception of certain additional testimony of the witness Mrs. Phillips to the effect that on the morning the mutilated body of the plaintiff's husband was found strewn along the tracks of the defendant for several hundred yards, she found a piece of a bloody shirt and a piece of bloody underwear, about ------ inches from the end of the crossties at the point where the servants of the defendant were seen by her to have examined something about the wheels of the engine while it was stopped at Pachitla station, the night before; and that she also found a sack of tobacco just inside the rail at that point. She further testified in this connection that she did not see the servants of the defendant take the articles found by her off of the engine, and that she did not know how these articles came to be at this point. She did not attempt to [197 S.E. 48.] testify that the servants of the defendant...

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