80 Ga. 534 | Ga. | 1888
This was an action for a personal injury. Clem was in the employment of the railroad company as a train-hand; and in March, 1886, his arm was crushed in the act of coupling cars, or more accurately, in the act of coupling a car to the engine. The record shows that in all probability, the casualty was produced by the defective spring of one of the bumpers. In consequence of that'defect, the machinery closed so as to clasp the arm and crush it.
The language of the plea is as follows:
“The defendant says that the plaintiff in said cause was, subsequent to the date of the alleged injury complained of in his declaration, and prior to the filing of his declaration, employed by the defendant and paid for his services on the faith of the statement and agreement made by the plaintiff, that he did not intend to sue for damages by reason of said alleged injury; and of this he puts himself upon the country.”
Whether this was meant to be urged as a covenant not to sue, or as a satisfaction, or by way of estoppel, does not appear upon the face of the plea. It has somewhat the characteristics of a plea in Juchter vs. Boehm, Bendheim & Co., 63 Ga. 76, 77. It sets up a sort of dead wall, and
It is said that it is almost in the very terms of the concurring opinion of Judge Jackson in Galloway vs. The Railroacl Company, 57 Ga. 513. But Judge Jackson, though not endeavoring to point out the requisites of a plea, but only to state his view of what would constitute the substance of a defence, named estoppel expressly, which the plea does not. Moreover, he was merely rendering his reason for concurring in the judgment. Each member of the court gave reasons for concurrence. The judgment was pronounced by Chief Justice Warner, and each of the Associate Justices concurred specially. So, that case is authority for nothing but the affirmance of the judgment in the court below. The reasoning of no one of the judges is authority as matter of law, because each judge took his own view of the proper ground upon which the judgment ought to be rested. It is unnecessary, however, to discuss the legal soundness of Judge Jackson’s concurring opinion; because this plea has the defects which I have pointed out, if no others; and whether that opinion
The judgment refusing a new trial is affirmed.