The Selma v. Lacy

• Decision Date: 31 July 1871
• Parties: THE SELMA, ROME AND DALTON RAILROAD COMPANY, plaintiff in error. v. ANN E. LACY, defendant in error.
• Court: Georgia Supreme Court

43 Ga. 461

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

Supreme Court of the State of Georgia

(Atlanta, July Term, 1871.)

Actions against Railroads Companies. Presumptions. Before Judge Parrott. Whitfield Superior Court. January, 1871.

Mrs. Lacy avowed that "E. G. Barney, in his official capacity as Superintendent of the Selma, Rome and Dalton Railroad Company, " and "A. D. Breed, lessee" thereof, had damaged her $30,000 00; for that, on the 3d of August, 1870, "the said defendants, in the State of Alabama, at or near Oxford, " killed her husband by the careless running of their engine and cars. The road was avowed to be in said county.

This declaration was demurred to: 1st. Because an action did not lie against Barney as Superintendent. 2d. This action was not sustainable in said county, because the injury was inflicted in Alabama. 3d. Because the right of action, if any, was in the husband's representatives, and not in his widow, and because it showed no cause of action in plaintiff. The Court sustained the demurrer upon the first ground only, overruling the others. This is assigned as error by both parties, each complaining of so much as is against that party. Here the cases were argued and decided together.

McCutchin & Shumate; Printup & Fouche, for S., R. and

D. R. Co. This action is based on section 2920 of Revised *Code. It has no extra territorial force: Story on C. of L, section 7; 13 Mass. R., 104. Lex loci governs as to contracts and torts: 2 Redf. on R., 278; 1 Howard, 28. The common law is presumptively of force in Alabama: 4 Denio., 505; 10 Wend., 78; 1 Hill, 270; 3 Abb., 23; 23 N. Y., 465; 6 Cald., 582. No action for this cause at common law: 15 N. Y. R., 432; 28 Barb. R., 13; 27th, 249; 24 Ga. R., 362; 38th, 433. In Alabama the widow cannot sue, but representatives may: N. C. of Ala., 2297 to 3000.

Joseph Glenn, for Mrs. Lacy.

WARNER, Judge.

This was an action brought by the plaintiff against the Selma, Rome and Dalton Railroad Company, in the county of Whitfield in this State, to recover damages for the death of her husband, alleged to have been killed by the defendant in running their engine and train of cars on said railroad at Oxford, in the state of Alabama. The defendant demurred to the plaintiff's declaration, on several grounds, and especially on the ground that the action cannot, by law, be maintained against the Selma, Rome and Dalton Railroad Company in the Superior Court of Whitfield county, Georgia, because it appears, from the plaintiff's declaration, that the injury was inflicted in the State of Alabama. This ground of demurrer was overruled by the Court, and the defendant excepted. There is no allegation in the plaintiffs' declaration as to what is the law of the State of Alabama in relation to the alleged cause of action, and in the absence of any such allegation, the Courts of this State will presume that the common law applicable to the alleged cause of action, is of force in that State. By the common law, the plaintiff could not have maintained her action against the defendant for the death of her...