The South-western R.R. Co. v. Paulk

• Decision Date: 31 January 1858
• Citation: 24 Ga. 356
• Parties: The South-Western Railroad Company, plaintiff in error. vs. Elizabeth Paulk, administratrix, defendant in error.
• Court: Georgia Supreme Court

24 Ga. 356

The South-Western Railroad Company, plaintiff in error. vs. Elizabeth Paulk, administratrix, defendant in error.

Supreme Court of the State of Georgia

JANUARY TERM, 1858.

New trial, from Taylor county. Tried before Judge Worrill, October Term, 1857.

This was an action brought in Taylor Superior Court by Elizabeth Paulk, as administratrix of Uriah Paulk deceased, against the South-Western Railroad Company, to recover damages for killing the said Uriah by the cars on the said railroad, at Butler, in Taylor county, on the 29th day of December, 1855. The letters of administration were granted to plaintiff by the Orphan's Court of Macon county, in the State of Alabama.

The defendant filed a plea to the jurisdiction of the Court on the ground that the suit should have been brought in the county of Bibb, where defendant kept his principal office, and not in the county of Taylor. This plea was overruled by the Court, and the defendant excepted.

The jury having been empannelled, the defendant demurred to the declaration, on the ground that Uriah Paulk, the plaintiff's intestate, died within the limits of the State of Georgia, and county of Taylor, and not in a foreign State, and consequently, under the Act of 1850, the action could not be sustained by a foreign administrator. This demurrer the Court overruled, and defendant excepted.

The defendant then moved the Court to dismiss the action on the ground that it was brought by Elizabeth Paulk, administratrix of Uriah Paulk, deceased, instead of by the widow of said Uriah Paulk, it having been admitted that said Uriah Paulk died leaving a widow surviving him; which motion the Court overruled, and defendant excepted.

Brief of evidence.

The plaintiff then offered in evidence an exemplification of her appointment as administratrix of Uriah Paulk, deceased, not including the letters of administration. To the admission of this, the defendant objected. The Court overruling the objection, admitted the same as evidence, and the defendant excepted.

Charles Phelps, testified: That he was the conductor of the train running from Macon to Columbus, at the time of the collision on the 29th of December, 1855, when Uriah Paulk was killed. The collision was caused by both trains being out of time.

Riley Peacock, testified: That he was with the deceased in the train when the collision occurred. Understood from the agent at Reynold's depot that the train he was on was running out of time. The conductor was looking out ahead all the time, and on seeing the other train coming, hallowed to the passengers to jump off, and jumped off the train just before the collision occurred. Uriah Paulk sat nearest the door at the back end of the car and rose and went out. and either jumped or fell off the car just before the collision occurred, and the train ran back over him. There was a general rush to the door at the back end of the car, but deceased was the only man that succeeded in getting out, as the door shut to and was so crowded by the passengers that it could not be opened.

B. F. Newsome, testified: That he was called professionally after the accident to see Paulk. Witness described the injuries received by Paulk, and stated that he died from them.

Patrick Calhoun, testified: That he was acquainted with Uriah Paulk in his lifetime; was traveling in the same train with him at the time of the accident. Paulk was a manthat drank some, but had not taken more than two or three drinks on the day of the trip referred to; and was perfectly at himself on that day.

Thomas Livingston, testified: That Uriah Paulk married his daughter. Paulk was a man of good character and worth about $25,000 at the time of his death, and left a wife and six children. He was a man of good capacity to acquire property.

Thomas Gates, testified: That he was a passenger on the train with deceased, at the time of the accident. Some one exclaimed, "jump out." When the exclamation was made no one countermanded the order. Witness did not recognize the voice of the person giving the order, as that of the conductor. After the collision, witness found the conductor and engineer off the train, and the engineer told him that he jumped off just before the collision, and left his engine reversed.

Winston, and Abbott, testified: That they were officers of the Mutual Life Insurance Company of New York, being the President and Secretary of the company — produced a pamphlet containing tables showing the terms on which risks are taken by the company. If a man is forty-two years old and in good health, so that the company would insure his life, the payment of $441.54, would secure his family $1,000; or the payment of an annual premium of $34.05, would secure the same sum. Knew of no money value for the deprivation of a husband and father.

W. C. Bandy, testified: That some person directed the passengers to leap from the cars; was of opinion that it was not the conductor. Is confident that Paulk would have jumped off even if no one had told him to do so, as he had previously stated his intention to do so, if there was any danger.

James Tune, stated: That Uriah Paulk was a very immoral man and intemperate. Was a good farmer and with a good capacity to manage his farm.

Allen G. Bass, testified: That the character of Uriah Paulk for morality and sobriety was not good. Does not consider he was worth more than $400 per year to his family. His character as a farmer was good.

Ralph O. Howard, testified: That Uriah Paulk's character for morality was not good; he was a man who used liquor very extravaganly. His services were worth $250 per year to his family.

R. M. Pitts, testified: That Uriah Paulk was a man of bad morals, and was a constant drinker and gambler. Supposes he was worth to his family as much as an overseer. He was a good farmer and manager on his plantation.

Asa Marshall, testified: That he was well acquainted with Uriah Paulk and had known him from a child. He was a thrifty man and his morals and character were good. At the time of his death his services were worth to his family $1,500 to $2,000.

Daniel Royal, testified: That he knew Uriah Paulk. He was an industrious money-making man. His services in the superintending and management of his affairs was worth from $1,500 to $2,000.

The Court then (among other things) charged the jury, "that the plaintiff as foreign administratrix had a right to sue in this action upon the cause set forth in the declaration."

To his charge the defendant excepted.

The Court further charged, "That in case of collisions of trains, a passenger seeing such collision about to take place was not in fault in jumping off the train, especially if the jury should believe that an order to do so was given by the conductor or other employee of the company on the train."

To which charge the defendant excepted.

The jury found for the plaintiff $12,000, and costs.

Defendant moved for a new trial on the following grounds: 1st. That the Court erred in overruling defendant\'s plea to the jurisdiction.

2d. That the Court erred in overruling the motion of defendant to dismiss said action on the ground, that Uriah Paulk, plaintiff's intestate, died within the limits of the State of Georgia, and in the county of Taylor, as appears upon the face of the declaration.

3d. That the Court erred in ruling that the action was properly brought by the administratrix of Uriah Paulk, instead of by the widow of said Paulk.

4th. That the Court erred in admitting the exemplification of the appointment of Elizabeth Paulk as administratrix, there being no letters of administration produced.

5th. That the Court erred in ruling that the plaintiff had a right as foreign administratrix to sue in this action upon the cause set forth in the declaration.

6th. That the damages assessed by the jury were excessive.

7th. That the verdict was contrary to law.

8th. That the verdict was contrary to evidence.

9th. That the Court erred in charging the jury that "in case of collision of trains, a passenger seeing such collision about to take place, was not in fault for jumping off the train, especially if the jury should believe that an order to do so was given by the conductor or other employee of the company on the train."

The motion for a new trial was refused, and defendant excepted.

Poe & Grier; and Gordon, for plaintiff in error.

Stubbs & Hill; and C.J. Williams, contra.

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

This is an action for damages, against the South Western R. R. Company, for having destroyed the life of defendant in error's intestate, while a passenger on plaintiff in error's train, in the county of Taylor, in December, 1855.

The right of action is claimed by virtue of the Act of 1850. It is not pretended that it existed at common law. That Act provides that, "In all cases thereafter, where death shall ensue from or under circumstances which would have entitled the deceased, if death had not ensued, to an action against the perpetrator of the injury, the legal representative of such deceased shall be entitled to have and maintain an action at law against the person committing the act from which the death has resulted; one-half of the money to be paid to the wife and children, or to the husband of the deceased, if any, in case of his or her estate being insolvent." (Cobb, 476.)

Counsel for the company insists, 1st. That this Act does not embrace railroads; and 2dly. That if it does, it impairs the obligation of the contract between the corporation and the people of the State, which was entered into five years before the Act of 1850 was passed; and was therefore void.

Railroad companies are not expressly included or excluded by the words of the Act. The terms used are, "perpetrators of the injury, " and "persons committing the act." Now, the well settled rule of construction is, that corporations are embraced in the words of a statute under the designation of persons, unless expressly excepted or excluded by necessary...