The Cent. R.R. v. Sears

• Decision Date: 28 February 1881
• Citation: 66 Ga. 499
• Parties: The Central Railroad. vs. Sears.
• Court: Georgia Supreme Court

66 Ga. 499

The Central Railroad. vs. Sears.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1881.

[Speer, Justice, having been of counsel, did not sit in this case. Judge Simmons, of the Macon circuit, was designated to preside in his stead.]

Railroads. Damages. Charge of Court. Before H. K. McCay, Esq., Judge pro hac vice. Spalding Superior Court. August Adjourned Term, 1880.

Reported in the decision.

A. R. Lawton; John I. Hall, for plaintiff in error.

B. H. Hill & Son; R. H. Johnson; E. W. Beck, for defendant.

Simmons, Judge.

Mary J. Sears, the defendant in error, instituted her action in the superior court of Spalding county, to recover damages for the homicide of her husband, Joseph G. Sears, by and through the carelessnes and negligence of the agents and servants of the corporation, the plaintiff in error. It appears from the record that said Sears was also an employe of said corporation, and was the conductor of the train at the time of his death. The declaration alleges, however, that his death was caused without fault or negligence on his part, but by the fault and negligence of his co-employes.

At the August term, 1880, of Spalding superior court, a trial was had before the Hon. H. K. McCay, judge pro hac vice, and the jury returned a verdict in favor of the plaintiff, for the sum of six thousand two hundred and seventy dollars. A motion for a new trial was made by the defendant on several grounds, which are set out in the record; the motion was refused and the defendant excepted, and assign as error the refusal to grant said new trial upon each and all of the said grounds.

In the view we have taken of the entire care, it is unnecessary for us to pass upon any of these grounds except the fourth, which is as follows:

4th. Because the court erred in charging the jury as follows: " I have been requested by counsel for defendant to charge you upon the subject of increasing the damages in this case on account of the fact that much delay has been caused by the defendant in this case. I do not see why this case is in any manner different from other cases, and if the plaintiff is entitled to recover damages she was entitled to that amount at the time of the death of her husband; say, for instance, should you find six thousand dollars damages, or any other sum, on the principles indicated, then I charge you that you may calculate the interest on that sum from the time of the death of Mr. Searsup to the present time, and when you do this you may add the interest to the principal, and should not keep the same separate, but should bring in your verdict for the two amounts added together as damages, should you find for the plaintiff; for I hold the law to be that the plaintiff is entitled to interest on the amount of damages to which she is entitled if you find in her favor."

The charge of the court complained of asserts the legal proposition that the plaintiff, as a matter of law, has a right to interest on whatever damages the jury may find she is entitled to. We think that was error. It is held in...