Southern Ry. Co. v. Decker

• Decision Date: 26 October 1908
• Docket Number: 1,098.
• Citation: 62 S.E. 678,5 Ga.App. 21
• Parties: SOUTHERN RY. CO. v. DECKER.
• Court: Georgia Court of Appeals

62 S.E. 678

5 Ga.App. 21

SOUTHERN RY. CO. v. DECKER.

No. 1,098.

Court of Appeals of Georgia

October 26, 1908

Syllabus by the Court.

The laws in force at the situs of a tort usually determine the civil results of its commission. In suits based on torts committed in other states, the courts of this state will enforce and will be governed by the lex loci delicti, subject to the usual exceptions recognized as being applicable in cases involving private international law.

(a) The courts of this state will not enforce a foreign law which is solely penal, or which contravenes the public policy of this state.

(b) The courts of this state, while yielding in the construction of the statutes of another state to the interpretation and effect given by the decisions of the highest courts of that state, will nevertheless determine for themselves whether the statute as construed and applied is penal or violative of the public policy of this state.

(c) The statute of the state of Alabama authorizing a civil action for unlawful homicides, as construed and applied by the Supreme Court of that state, is not penal in the international sense.

(d) A statute is not penal in the international sense merely because it awards only punitive damages, measuring the amount by the culpability of the wrongdoer.

[Ed Note.-For other cases, see Torts, Cent. Dig. § 2; Dec. Dig. 2 ^[*]; Courts, Cent. Dig. §§ 18, 19, 323; Dec. Dig. §§ 8, 95 ^[*]; Statutes, Cent. Dig. § 256; Death Cent. Dig. § 50; Dec. Dig. § 35. ^[*]]

The statute of the state of Alabama authorizing a civil action for negligent homicides is not violative of the public policy of this state because the measure of damages to be awarded under it is dissimilar to the measure prescribed in like cases by the statutes of this state.

(a) The policy of this state tends toward the preservation of actions beyond the death of the parties; and the courts, therefore do not hesitate to enforce the statutes of other states and foreign countries substantially similar to the English statute known as "Lord Campbell's Act," though the elements of damage sought to be compensated may be variant from what is deemed adequate or just in this state.

(b) The courts of this state will not exclude Alabama suitors, so long as the courts of that state do not exclude Georgia suitors. Only in this sense is the expression "reciprocity is comity" applicable to causes of action springing from wrongful deaths occurring in Alabama.

(c) It is not competent for any foreign Legislature to prescribe what laws shall be recognized and enforced in the courts of this state, even though the law as to which cognizance is sought to be excluded is a statute of the state whose Legislature seeks to create the exclusion.

[Ed Note.-For other cases, see Death, Cent. Dig. § 50; Dec. Dig. § 35 ^[*]; Courts, Cent. Dig. § 1432; Dec. Dig. § 511. (FN*)]

A railway company owes the duty of exercising ordinary care and diligence to a person gratuitously riding upon a train by consent of the conductor, in the absence of collusion between him and the conductor to defraud the company.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1103; Dec. Dig. § 280. (FN*) ]

A writing prepared by a person and containing special provisions for his benefit will be most strongly construed against him.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1258; Dec. Dig. § 307. (FN*) ]

5. The record is free from error.

Error from City Court of Fayetteville; W. B. Hollingsworth, Judge.

Action by M. E. Decker, administratrix of the estate of Nathan E. Decker, deceased, against the Southern Railway Company. Judgment for plaintiff, and defendant brings error. Affirmed.

The defendant in error, as the administratrix of her husband, Nathan E. Decker, filed her suit for the homicide of her husband, which occurred in the state of Alabama on April 16, 1907. She recovered a verdict, and the case comes here on exception to the overruling of a motion for new trial filed by the railway company. Upon the trial it appeared that on April 15, 1907, Decker made application to the Southern Railway Company for employment as a locomotive engineer. He was not employed; but a permit was granted him in the following language: "Birmingham, Ala., April 15, 1907. All Freight Engineers: The bearer, N.E. Decker, desires to enter the service of the Southern Railway Company as engineer on the Atlanta Division, and is hereby authorized to ride on freight engines for the purpose of learning the road and also the duties of an engineer, at his own risk and without expense to the company. Engineers with whom this man rides will see that he is given all opportunity to learn the business, and if they can recommend him as a proper man for employment in this capacity they will sign their names, and from and to what point they ride with him. This order is good for 30 days from date. If this permit is presented after the expiration of same, take it up and return same to my office, with full explanation. Yours truly, N.N. Boyden, Master Mechanic. N.E. Decker, Signature, W. R. Tomlinson, Witness." Under this permit he went upon the engine of a freight train leaving Birmingham for Atlanta, and rode on the engine until Anniston, Ala., was reached. At that point, it having become dark and the night being rainy, the deceased left the engine, and, seeing the conductor in charge of the train, said to him, "I believe I will go back to the cab." The conductor replied, "Very good;" and under this consent the deceased went back and lay down in the cab. Just before the train reached Choccolocco, Ala., it broke in two without attracting the notice of the persons in charge of it. The engineer stopped the front portion of the train at the station, and a few moments later the rear cars and the cab crashed into it, and in the collision Decker's neck was broken. It is not necessary or important to recount the acts of negligence charged, or the evidence offered in proof or in disproof of them. It will be sufficient to say that the jury was authorized to find that there had been a failure in ordinary care and diligence on the part of the defendant, but not that there was any wantonness or gross negligence. Further facts essential to an understanding of the points decided will be stated in the course of the opinion.

McDaniel, Alston & Black, C. E. Battle, Howell Hollis, and Blalock & Culpepper, for plaintiff in error.

Reuben R. Arnold, for defendant in error.

POWELL J.

1. Initially in the case arises a question of private international law, raised by the contention of the plaintiff in error that the courts of this state will not give juridic recognition and enforcement to the Alabama statute on which this suit is based-section 27 of the Code of Alabama of 1896-which is a mere codification of the substantial provisions of a statute enacted by the General Assembly of that state and approved February 5, 1872. As to the identity of this statute and the Code section, see R. & D. R. Co. v. Freeman, 97 Ala. 289, 11 So. 802. This statute, as codified above, provides: "A personal representative may maintain an action, and recover such damages as the jury may assess, for the wrongful act, omission, or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission or negligence, if it had not caused death. Such action shall not abate by the death of the defendant, but may be revived against his personal representative; and may be maintained, though there has not been prosecution or conviction or acquittal of the defendant for such wrongful act or omission or negligence; and the damages recovered are not subject to the payment of debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions. Such action must be brought within two years from and after the death of the testator or intestate." The contention is that the courts of this state should not enforce this statute, as construed by the Alabama courts, because it is penal in its nature; is dissimilar in character, principle, and design from any and all the laws of this state, especially in that it authorizes the assessment of punitive damages for mere negligence, without the proof of any actual damages; also because foreign statutes are enforced only through comity, and the laws of Alabama will not permit a nonresident corporation to be sued in its courts for a tort committed in another state; that "reciprocity is comity."

The courts of this state will give to a statute of a sister state the same meaning as is given it by the courts of that state. Georgia, Fla. & Ala. Ry. Co. v. Sasser, 4 Ga.App. 276, 61 S.E. 506 (7b). Nevertheless the courts of this state will decide for themselves whether the statute as construed by the courts of the state of its enactment is in fact penal in the sense that this term is used as to questions of private international law and the comities arising thereunder, or is contrary to our public policy, and to this end may disregard language employed by the local tribunals in describing the statute, or in designating the nature of the damages that are awarded thereunder. Huntington v. Attrill, 146 U.S. 657, 683, 13 S.Ct. 224, 36 L.Ed. 1123; Evey v. Mexican Central R. Co., 81 F. 294, 26 C.C.A. 407, 38 L.R.A. 387, 393; Whitlow v. N., C. & St. L. R. Co., 114 Tenn. 344, 84 S.W. 618, 68 L.R.A. 506. The courts of nearly every civilized state or country give force and effect to foreign laws and administer rights arising under them, not because they are compelled or bound to do so by any superior authority or by...