40 Ga. 52 | Ga. | 1869
The declaration in this case distinctly alleges that the deceased husband of the plaintiff “ was a soldier and officer in the army of the Confederate States, owing service, fidelity and allegiance to the same;” that he was ordered by his superior officer to enter the cars of the Western and Atlantic Railroad, and proceed to a point on that road; that the Superintendent of the road was carrying soldiers on said road for hire and reward, paid by the authorities of said Confederate States, and that, therefore, and in consideration of the hire and reward so paid and agreed upon, and transportation furnished and paid for by said Confederate States Government to said defendant, said ’Superintendent undertook and promised to carry and convey the said husband of the plaintiff from Atlanta to a point on said road, etc., and that he was killed on the way by the negligence of the offi'cers of the road. The evidence contained in the bill of exceptions discloses the fact that the deceased was Captain of Company H., 50th Regiment, Tennessee Infantry, and that he was on board the cars' with his company, on his way to the battle-field of Chickamauga, as witness, who was a member of the company, thinks, to engage in the battle.
Under the state of facts disclosed by plaintiff’s declaration, and his own witness, we are unable to draw a distinction in principle between this case and the case of Cannon vs. Wallace, Superintendent, 38th Georgia, 199. In that case the road was engaged in carrying troops for the Confederate Government, and Cannon, who was an employee of the road voluntarily engaged in aiding it to cany the troops, was killed by the carelessness of another employee of the road, and it was held that his widow could not recover, because both Cannon and the road were engaged in the same illegal transaction in violation of the supreme law of the land — that is, they were both, at the time of his death, aiding tiie Confederate 'Government to conduct hostilities against the Government of the United States by transporting troops in its service.
In the case now under consideration, Captain Martin was
Admit all that was claimed in the eloquent appeal of the able counsel who concluded the argument for the plaintiff in error (General Garlington) as to the defacto character of the Confederate Government, and its power over its subjects, who were obliged to yield it their allegiance and,support, and the same result must still follow. The Confederacy failed. The Government of the United States triumphed, and wielding the power of a conqueror, solemnly enacted that the attempt
We would only remark, in conclusion, that the”plaintiff in this action can, take no such benefit under the Conscript Act, as was claimed by the counsel. He was a captain commanding a company. He must have accepted that position voluntarily. Persons were not compelled by the Conscript Act, tyrannical as it was, to fill the offices in the army. Volunteers were found ready to accept them.
Judgment affirmed.