Zipperer v. Mayor And Aldermen Of Savannah

• Decision Date: 12 April 1907
• Citation: 57 S.E. 311,128 Ga. 135
• Parties: ZIPPERER v. MAYOR AND ALDERMEN OF SAVANNAH.
• Court: Georgia Supreme Court

57 S.E. 311

128 Ga. 135

ZIPPERER

v.MAYOR AND ALDERMEN OF SAVANNAH.

Supreme Court of Georgia.

April 12, 1907.

1. Municipal Corporations — Policemen — Funeral Expenses—Right of Family to Unearned Compensation.

An employe of a union station terminal company, who is employed by the company to perform duties prescribed by it, and whose wages are paid by it, but who, by ordinance of a municipality, is clothed with the usual powers of a police officer, and made subject to all the rules, regulations, and ordinances governing city police, is not a member of the city police force whose dependent family may recover of such municipality compensation for his burial expenses and unearned salary, under an ordinance providing that "every member of said police force who is killed while in the discharge of his duty * * * shall be buried at the expense (not to exceed $50) of the said city, and the dependent family of the same member shall receive his monthly salary for six months after his death."

2. Trial — Reception of Evidence — Withdrawal of Evidence.

A party to a cause is not entitled, as a matter of right, to withdraw legal and competent evidence voluntarily introduced by him, which is favorable to his adversary.

[Ed. Note.—For cases in point, see Cent Dig. vol 46, Trial, § 137.]

3. Trial— Postponement—Procuring Additional Evidence.

The court is not bound to suspend the trial of a cause to enable a litigant to procure additional evidence.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 42.]

4. Same — Nonsuit — Irregularities — Relief on Appeal.

The proper practice where the plaintiff fails to make out a prima facie case, and the defendant offers no proof, is to enter a judgment of nonsuit. In such a case, where a verdict for the defendant has been directed, and no errors have occurred in the trial, the judgment will be affirmed, with direction that the plaintiff have leave to vacate the verdict, and substitute therefor a judgment of nonsuit, when the remittitur is made the judgment of the court below.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 359-361.]

(Syllabus by the Court.)

Error from Superior Court, Chatham County; Geo. T. Cann, Judge.

Action by Maud L. Zipperer against the mayor and aldermen of Savannah. A verdict was directed for defendant, and, from an order overruling plaintiff's motion for a new trial, plaintiff brings error. Affirmed, with direction.

Mrs. Maud L. Zipperer, in her own right, and as next friend. of her infant child. Gladys, filed suit against the mayor and aldermen of the city of Savannah, for six months' salary, at $60 per month, and $50 funeral expenses, of her husband, alleging that he was killed while in the discharge of his duty as a policeman of the city of Savannah, leaving her and his minor child as the surviving members of his dependent family; that, under ordinance of that city, "every member of said police force who is killed while in the discharge of his duty, or dies from wounds received in the discharge of his duty, shall be buried at the expense (not to exceed $50) of the said city, and the dependent family of the same member shall receive his monthly salary for six months after his death"; that the funeral expenses of the deceased were more than $50, and were paid by the wife; and that due demand had been made on the city. Defendant denied any indebtedness, or that Zipperer was a policeman of the city of Savannah before or at the time of his death, alleging that he was "a watchman at the Union Station in Savannah, but clothed with the necessary police powers to arrest, being in the pay of the Union Station Company, or of some other person than this defendant." On the trial the court directed a verdict in favor of the defendant. Plaintiff made a motion for new trial, and excepts to the overruling of the same.

Stubbs & Chapman, for plaintiff in error.

Wm. Garrard and Samuel B. Adams, for defendant in error.

EVANS, J. (after stating the facts). 1. Before the plaintiffs will be entitled to recover of the city by virtue of the ordinance declared on as fixing a liability, they must bring themselves plainly within its terms. In the attempt to do this, it developed that Zipperer, the husband and father of plaintiffs was at the time of his death employed and paid by the Union Station Company. The trains of the Atlantic Coast Line, formerly the Savannah, Florida & Western Railway, and of the Seaboard Air Line Railway, run into that station, and both of those roads have property there. In addition to the ordinance set out in the foregoing statement of facts, the following ordinances were introduced:

"To Form Part of Regular Police. The additional policemen provided for in the foregoing section of this ordinance shall be taken and held as a part of the regular police force of the city of Savannah, and the sergeants so appointed shall have all the authority of other sergeants in the police force, and the privates so appointed shall be held to be regular policemen of the city of Savannah, and liable to perform any and all of the duties of sergeants and policemen, and subject to the same rules and regulations as govern the city police in all particulars, and subject to obey the commands of the officers of the city police, as are the present members of said city police."

"Police for Savannah, Florida & Western Railway. The Savannah, Florida & Western Railway Company shall have the power to appoint fit and proper persons to be stationed at its wharves, depots and yards, who shall be approved by the Mayor, shall take the same oath, give the same bond, as required of the police, and shall be subject to perform the duties prescribed by the said company, and shall receive from said company such salary as it may deem proper, and...