Shields v. Yonge

• Decision Date: 30 April 1854
• Docket Number: No. 48.,48.
• Citation: 15 Ga. 349
• Parties: George Shields, plaintiff in error. vs. George Yonge, Superintendent of the Western & Atlantic Railroad, defendant in error.
• Court: Georgia Supreme Court

15 Ga. 349

George Shields, plaintiff in error. vs. George Yonge, Superintendent of the Western & Atlantic Railroad, defendant in error.

No. 48.

Supreme Court of the State of Georgia

APRIL TERM, 1854.

Case, in Whitfield Superior Court. Decision by Judge Jno. H. Lumpkin, April Term, 1854.

This was a suit by George Shields, against George Yonge, as Superintendent of the Western & Atlantic Railroad, for the death of a minor son of the plaintiff, caused by the negligence of employees of the Western & A. R. R. One count in the declaration, alleged that the son was upon the train as a passenger, by contract for safe-carrying, with the father. Another count alleged, that he was employed on the train as a fireman, by contract with the father. The damages alleged were, loss of service, until the son arrived at the age of twenty-one years; loss of service, during the one hour during whichthe boy survived after the accident occurred; and a special damage, by reason of the grief to the mother, causing an attack of sickness, and consequent loss of service to the plaintiff.

On motion, the presiding Judge non-suited the plaintiff, on the ground, that there was no good cause of action set forth in the declaration.

This decision is assigned as error.

Weight and Johnson, for plaintiff in error.

Akin and Underwood, for defendant in error.

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

Is either count in the declaration good?

In Baker vs. Bolton and others, in Campbell's Nisi Prius Cases, Lord Ellenborough is reported to have used these words: "in a Civil Court, the death of a human being could not be complained of as an injury". No authority is cited for this opinion.

In Comyn's Digest, "Trespass", (b. 5,) it is said, "so it (trespass) lies by a master, for the battery of a servant, per quod, &c, after the death of the servant"; and 2 Rol. 568, l. 42, is cited.

On the contrary, in Bacon's Abridgment, "Muster and Servant", (O,) it is laid down, that "if a man beats another's servant to that degree that he dies thereof, the master loses his action, and must proceed by indictment—for the private injury to him, is drowned in the general injury to the public"; and for this, is cited, among other authorities, the same, 2 Roll. Abr. 568.

Rolle's Abridgement, itself, is not within my reach; and, therefore, I cannot find out which position it supports—that of Bacon or that of Comyn.

Let it be admitted, however, that Rolle's Abridgement supports the position of Bacon, and that that position is right, what, then, does that position amount to? Blackstone, it is conceived, answers this question.

Blackstone says, "In all cases, the crime includes an injury—every public offence is also a private wrong, and somewhat more—it affects the individual, and it likewise affects the community". "Murder is an injury to the life of an individual, hut the law of society considers, principally, the loss which the State sustains, by being deprived of a member, and the per-nicious example thereby set, for others to do the like. Rob-bery may be considered in the same view—it is an injury to private property; but were that all, a civil satisfaction, in damages, might atone for it. The public mischief is the thing, for the prevention of which, our laws have made it a capital offence. In these gross and atrocious injuries, the private wrong is swallowed up in the public. We seldom hear any mention made of satisfaction to the individual—the satisfaction to the community being so very great. And, indeed, as the public crime is not otherwise avenged, than by forfeiture of life and property, it is impossible, afterwards, to make any reparation for the private wrong, which can only be had from the body or goods of the aggressor. But there are crimes of an inferior nature, in which the public punishment is not so severe; but it affords room for a private compensation also.— And herein, the distinction of crimes, from civil injuries, is very apparent. For instance, in the case of battery or beating another, the aggressor may be indicted for this, at the suit of the King, for disturbing the public peace, and be punished criminally, by fine and imprisonment; and the party beaten, may also have his private remedy, by action of trespass, for the injury which he, in particular, sustains, and recover a civil satisfaction in damages". (4 Black. Com. 6.)

According to this, in "gross and atrocious injuries, the private wrong is swallowed up in the public"; but is not, "in crimes of an inferior nature". What is meant by gross and atrocious injuries? Those which are "avenged by forfeiture of life and property"; or, perhaps, by forfeiture of property only. Those, certainly, are meant, which are avenged by sucha forfeiture as renders it "impossible, afterwards, to make any reparation for the private wrong"; and a forfeiture of property only, is such a forfeiture as does this.

What "injuries" are those which are so avenged? All of the degree of felony. "Felony, in the general acceptation of our English Law, comprises every species of crime which occasioned, at Common Law, the forfeiture of lands and goods, " (4 Black. Com. 94.)

And, as to felonies, Blackstone also says: "not only all offences now capital, are, in some degree or other felony, but that this is likewise the case with some other offences, which are not punished with death—as suicide, where the party is already dead—homicide, by chance-medley or in self-defence, and petit larceny or pilfering—all which are, (strictly speaking,) felonies, as they subject the committer of them to forfeitures".

Speaking again of homicide, "by misadventure and self-defence, " he says, "the penalty inflicted by our laws, is said, by Sir Edward Coke, to have been, anciently, no less than death—which, however is, with reason, denied by later and more accurate writers. It seems, rather, to have consisted in a forfeiture, some say, of all the goods and chattels", (i. e. of all that, at Common Law, could be reached, for satisfaction of a debt)—"others of only a part of them, by way of fine or weregild. But, the delinquent has now, and has had, as early as our records will reach, a pardon and writ of restitution of his goods, as a matter of course and right. And, indeed, to prevent this expense, in cases where the death has notoriously happened by misadventure or in self-defence, the Judges will usually permit (if not direct) a general verdict of acquittal". (Ib. 188.)

The amount of this is, that anciently, homicide, even by misadventure, or in self-defence, was a felony; and that 'now', it is no crime at all—now it is "excusable". And this is the same as saying, that by the English Law, all homicide is, and has always been, either felonious or innocent—as saying, thatthere neither is, nor has been, any intermediate kind, that may rank as a misdemeanor.

Indeed, his division of homicide is into three kinds—justifiable, excusable and felonious; and in making this division, he places homicide, by misadventure, and in self-defence, under the head of 'excusable'. By the ancient law, it would have been to be placed under the head of felonious—since it has got to be excusable, it may, without impropriety, be said to have become innocent; that is to say, to have become a sort of homicide that is not an injury of any kind, either public or private.

When, therefore, Blackstone says, that in "gross and atrocious injuries, the private wrong is swallowed up in the public", he, in effect says, that the private wrong is so swallowed up in all homicides that are injuries—for all homicides that are injuries at all, are injuries which amount to felonies; and in all felonies, the private wrong is so swallowed up.

But how 'swallowed up'? What does he mean by these words? Does he mean that the private injury is merged in the public, so as to be forever gone; or does he mean that it is merely merged for a time—that it is only suspended until the public injury shall have been avenged? Manifestly, he means the latter; for he puts the proposition, that after reparation has been made for the public wrong, no reparation is to be made for the private wrong—not upon the ground that no reparation is then due for that private wrong, but upon the ground, that it is practically impossible that reparation for it should be made—all, out of which reparation could be made, having already been used up, in making reparation for the public wrong —all having gone in forfeiture to the public. This is the same as saying, that if, after reparation is made to the public, there is anything left, out of which reparation may be made to the private man, he will be entitled to reparation—that is, that the private man has a right to reparation, after reparation to the public; but that, practically, this right is nugatory as repara-tion to the public, consumes all that he, who is to make repa-ration, has.

Now, that this swallowing up of the private injury in the public, means, with respect to all injuries, other than homicides, this sort of suspension, merely, of the private injury, is well established. Hale says, "by course of Common Law, A steals the goods of B, viz: fifty pounds, in money—A is convicted and hath his clergy, upon the prosecution of B. B brings a trover and conversion for this fifty pounds, and upon not guilty pleaded, this special matter is found and adjudged for the plaintiff, because now, the party hath prosecuted the law against him, and no mischief to the commonwealth; but it was held, that if a man feloniously steal goods, and before prosecution by indictment, the party robbed brings trover, it lies not, for so felonies should be healed". (1 Hale, P. C. 546.) To the same effect are, Crosby vs. Long, (12 East. 409. 17 Ves. 327. 1 Ch. Cr. Laws, 5.)

Be the reasons for allowing a suit for the private injury, after the accomplishment of a suit for the public injury, what they may, they are plainly as applicable to injuries by homicide, as to any other felonious injuries—that...