Martin v. Wallace
40 Ga. 52
Ga.
1869
Check Treatment
Brown, C. J.,

Thе declaration in this case distinctly alleges that the deceased husband of the plaintiff “ was a soldier and officеr in the army of the Confederate States, owing service, fidelity and allegiance to the same;” that he was orderеd 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 аuthorities 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 defеndant, 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 еvidence 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 disсlosed by plaintiff’s declaration, and his own witness, ‍‌‌‌​‌​‌​‌​​‌‌​​​​​‌​​‌‌‌‌‌​​‌‌‌‌‌‌‌‌​​‌‌‌‌‌‌‌​​​‍we are unable to draw a distinction in principle between this casе 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 *55not an employee of the road, but he was in cоinrpand of a company of Confederate troops, on his way to en'gage ‍‌‌‌​‌​‌​‌​​‌‌​​​​​‌​​‌‌‌‌‌​​‌‌‌‌‌‌‌‌​​‌‌‌‌‌‌‌​​​‍in the battle of Chickamauga, and the road was transporting him to said battle-field for hire, paid by the Confederate Govern~ merits Both he and th<? road were in the service of the Confederate Government at the time of his death, just as both were in the service of that government at the time of Cannon’s death. The fact that оne was an employee of the road and the other was ail officer of the Confederacy can makе no ¿difference, as both were aiding the Confederacy in common with the road, and upon the cars of the roаd when they were killed. The one gave aid., by helping to run the cars with troops on board, the other aided by passing upоn the road under arms as an officer of the Confederacy, while his fare was paid by it to the road. In each cаse the road was in the service of the Confederate Government, engaged in the transportation of troops wh^n the collision occurred, and in each the deceased was on board the train, which was engaged-in the transportation of troops, and was himself in the service of the Confederacy — the one as a captain under arms, thе other as an employee of the road, transporting those who were ‍‌‌‌​‌​‌​‌​​‌‌​​​​​‌​​‌‌‌‌‌​​‌‌‌‌‌‌‌‌​​‌‌‌‌‌‌‌​​​‍under arms. The object was a commоn one in both eases, and the road, and all who were on board, were actively aiding to conduct hostilities agаinst’ the United States. While so- engaged they were in pari delieto, and the Courts, who, as well as all other departments of the Government, аre bound to accept the situation and administer the law as they find it, cannot lend their aid to assist either in the casе of injury sustained by the negligence or the misconduct of the other,

Admit all that was claimed in the eloquent appeаl of the able counsel who concluded ‍‌‌‌​‌​‌​‌​​‌‌​​​​​‌​​‌‌‌‌‌​​‌‌‌‌‌‌‌‌​​‌‌‌‌‌‌‌​​​‍the argument for the plaintiff in error (General Garlington) as to the defacto charаcter of the Confederate Government, and its power over its subjects, who were obliged to yield it their allegianсe 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 *56to set up an independent government was rebellion, and that all wbo voluntarily aided and abetted were rebels. The present State governments werе organized under the dictation of the conqueror, upon this theory. And although the President of the United States, by his proclаmation, may have granted pardon' and amnesty to all, this does not authorize the Courts to give damages to one оf two parties who were engaged together in the illegal enterprise fpr injuries received during its joint prosecutiоn. If ‍‌‌‌​‌​‌​‌​​‌‌​​​​​‌​​‌‌‌‌‌​​‌‌‌‌‌‌‌‌​​‌‌‌‌‌‌‌​​​‍the enterprise were illegal at the time, and those engaged in it were guilty of a violation of the penal laws оf the United States, which our failure compels us to admit, the pardon of the President, which wipes out the offence аgainst the Government, can not give a right of action to one against the other for injuries received in the joint cоmmission of the illegal act or crime which rendered the' pardon necessary to relieve the parties from the punishment prescribed by law for their joint offence.

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.