Turner v. The North Carolina R. R. Co.

Citation63 N.C. 522
CourtUnited States State Supreme Court of North Carolina
Decision Date30 June 1869
PartiesSMITH TURNER v. THE NORTH CAROLINA R. R. COMPANY.
OPINION TEXT STARTS HERE

Where an officer in the military service of the Confederate States, whilst absent from such service contracted with a Rail Road Company to transport him to the headquarters of the army in order to report to the Commander-in-Chief, and received personal injury on the route by the negligence of such Company; Held, that because then and there engaged in an act of hostility to the United States, he was not entitled to recover damages.

Such defence arises upon the plea of the General Issue.

( Martin v. McMillan, 63 N.C. 486 cited and approved.)

CASE, tried before Tourgee, J., at Spring Term 1869 of the Superior Court

of ALAMANCE.

The plaintiff showed that at the time of the occurrence (April 21st, 1865) he was a citizen of Virginia, and an officer of the Confederate army; and that upon the fall of Richmond, a few days previously, he had escaped from a Confederate hospital there, without having been captured or paroled; that he came from Richmond to the neighborhood of the Company Shops in Alamance County, and on the 21st of April, 1865, took passage in a train belonging to the defendant for Greensboro; and that his object in going to Greensboro was to report to General Joseph E. Johnston, commanding the Confederate forces in this department at that time.

The personal injuries of which he complained were received upon that train, through the alleged negligence of the officials of the Company.

The Court thereupon, at the instance of the counsel for the defendant, intimated an opinion that the plaintiff could not recover, by reason of the unlawfulness of the errand on which he was going at the time of the alleged injury: he then and there being an officer of the Confederate army, in the line of his duty as such, upon his way to report to his superior, and so, engaged in an act of hostility to the government of the United States.

Thereupon the plaintiff submitted to a non-suit, and appealed.

Graham, for the appellant .

1. The defence made requires to be set forth by a Plea in abatement; and is not competent under the General Issue. 1 Chitty 446, 448, 2 Abbott p. 25.

2. The defendant, being in pari delicto, cannot set up such a defence. Does civil war dissolve society, and destroy the legal remedies of insurgents against each other?

3. As matter of public history, at the time the injury in question was inflicted, there were negotiations for peace on foot between General Sherman and General Johnston; and a truce covered the country between the Shops and Greensboro; and peace was proclaimed by those parties on the 26th of April thereafter. The presumption therefore is, that the plaintiff did not intend hostility to the United States by his action, but only to place himself in a situation to be surrendered.

4. The Ordinance of 18th October 1865, proclaimed the whole body of laws in North Carolina (except so much as was intended to support the civil war) to be and to have been in force; and as matter of common observation, the greater part of the litigation now existing arises from torts and contracts that arose during the war,

Phillips & Merrimon, contra.

The only question is, whether an officer of the Confederate States army, can, in a Court under the United States, enforce against the party transporting him to the field, the ordinary duties of diligence as to speed or safety of carriage, demandable by passengers? Would such Courts entertain suits for failure to transport safely Confederate regiments, which thereby failed to be at a certain battle; or, say, Confederate ammunition or army stores which by not arriving crippled an army? We do not speak of cases of trespass, much less of breaches of the peace, against such persons, nor in any manner of their personal rights, except for damages occasioned by negligence of their right to personal security whilst engaged in an act of hostility. Whether this be by loyal persons or by persons in pari delicto these Courts may well say, “Look ye to it, we will be judges of...

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5 cases
  • Mcneill v. Durham & C R. Co
    • United States
    • North Carolina Supreme Court
    • June 1, 1904
    ...law of the land, as construed by the courts in which the actions were necessarily brought. The following are illustrative cases: Turner v. Railroad, 63 N. C. 522; Martin v. Wallace, 40 Ga. 52; Wallace v. Cannon, 38 Ga. 199, 95 Am. Dec. 385; Railroad v. Redd, 54 Ga. 33; Connolly v. Boston, 1......
  • McNeill v. Durham & C.R. Co.
    • United States
    • North Carolina Supreme Court
    • June 1, 1904
    ...law of the land, as construed by the courts in which the actions were necessarily brought. The following are illustrative cases: Turner v. Railroad, 63 N.C. 522; Martin v. Wallace, 40 Ga. 52; Wallace Cannon, 38 Ga. 199, 95 Am. Dec. 385; Railroad v. Redd, 54 Ga. 33; Connolly v. Boston, 117 M......
  • Lloyd v. North Carolina R. Co.
    • United States
    • North Carolina Supreme Court
    • December 23, 1909
    ...Burbage v. Windley, 108 N.C. 357, 12 S.E. 839, 2 L. R. A. 409; Puckett v. Alexander, 102 N.C. 95, 8 S.E. 767, 3 L. R. A. 43; Turner v. Railroad, 63 N.C. 522; Warden v. Plummer, 49 N.C. 524; Sharp Farmer, 20 N.C. 255; Wallace v. Cannon, 38 Ga. 199, 95 Am. Dec. 385. The decision in McNeill's ......
  • McNeill v. Durham & C.R. Co.
    • United States
    • North Carolina Supreme Court
    • April 28, 1903
    ...44 S.E. 34 132 N.C. 510 McNEILL v. DURHAM & C. R. CO. Supreme Court of North CarolinaApril 28, 1903 ...          Appeal ... from Superior Court, Moore County; O. H ...          This is ... a stronger case for the defendant than Turner v ... Railroad, 63 N.C. 522, in which a soldier contracted ... with a railroad company for ... ...
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