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

• Citation: 63 N.C. 522
• Case Date: June 30, 1869
• Court: United States State Supreme Court of North Carolina

63 N.C. 522

SMITH TURNER
v.
THE NORTH CAROLINA R. R. COMPANY.

Supreme Court of North Carolina.

June Term, 1869.

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

[63 N.C. 523]

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,...