The Selma v. Lacky

• Decision Date: 31 January 1873
• Parties: THE SELMA, ROME AND DALTON RAILROAD COMPANY, plaintiff in err0r. v. ANN E. LACKY, defendant in error.
• Court: Georgia Supreme Court

49 Ga. 107

THE SELMA, ROME AND DALTON RAILROAD COMPANY, plaintiff in err0r. v. ANN E. LACKY, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1873.)

State. Constitutional law. Comity. Railroads. Amendment. Before Judge Harvey. Whitfield Superior Court. October Term, 1872.

For the facts of this case, see the decision.

J. E. Shumate; Printup & Fouche, for plaintiff in error.

J. & J. A. Glenn; D. A. Walker, for defendant.

WARNER, Chief Justice.

On the first of October, 1870, the plaintiff instituted her action against Barney, superintendent, and Breed, lessee, of the Selma, Rome and Dalton Railroad Company, in the county of Whitfield, in this State, to recover damages for the killing of her husband by the running of an engine and train of cars by said railroad company on the 3d day of August, 1870, near Oxford, in the State of Alabama. The case was tried in the Court below, and brought before this Court by a *writ of error at the July term, 1871, when the judgment of the Court below was reversed, this Court holding and deciding, that the action could not be maintained in the Courts of this State for the injury done within the territory of the State of Alabama, without an allegation in the declaration that the law of the State of Alabama gave to the plaintiff a right of action to recover there damages for killing her husband by the railroad company: See 43 Georgia Reports, 461. When the case was remitted back to the Court below, the plaintiff offered to amend her original declaration by adding a count thereto that her husband was killed by the said railroad company by the negligent running of its engine and cars on its said road, and setting forth the law of the State of Alabama, which authorized her to recover damages from the company for the killing of her husband in that State. The amendment was filed on the 23d day of October, 1871. On the last trial of the case, the defendant filed a special demurrer to the plaintiff\'s amendment. First because she does not show thereby any legal cause of action according to the law of the State of Alabama. Second, because there was no original cause of action pending in the Court below, under the decision of this Court, to be amended, that the alleged original cause of action was out of Court, and there was nothing in Court to amend by. The Court overruled the demurrer, and the defendant excepted. The Court then proceeded with the trial of the case, and the jury found a verdict in favor of the plaintiff for the sum of $666 00. A motion was made for a new trial on the several grounds of error alleged therein to the ruling of the Court, which was overruled, and the defendant excepted. By the 2297th section of the Revised Code of Alabama it is declared: "When the death of a person is caused by the wrongful act, or omission, of another, the personal representative of the former may maintain an action against the latter at any time within one year thereafter, if the former could have maintained an action against the latter for the same act, or omission, had it failed to produce death." The 2298th section declares that "the damages re-ceived *in such action cannot exceed three years\' income of the deceased, and in no case exceed $3,000 00. The amount recovered is for the benefit of the widow; if there be none, then for the benefit of the child or children; if there be none, then to be distributed as other personal property amongst the next of kin of the deceased." The 2300th section declares that, "If such death is caused by the wrongful act, omission, or culpable negligence of any officer or agent of any chartered company, or private association of persons, such company or association are responsible in damages, and an action may be maintained against them, as provided in the preceding sections." Such is the law of Alabama regulating the plaintiff\'s right to recover damages against the defendant for killing her husband in that State. The right of action is confined to the personal representative of the deceased, and although the amount recovered by the personal representative of the deceased is for the benefit of the widow, still she cannot maintain an action for it in her own name. The right of the personal representative of the deceased to recover damages for his death is limited to one year thereafter.

In conducting the trial of the case, our Courts will be governed by our own laws as to the mode of procedure in ascertaining the rights of the parties, but as to what are their rights must be determined by the laws of Alabama, where the act complained of was done. The 2920th section of our Code did not give to the plaintiff any right of action against the defendant for killing...