McCrary v. Nashville, Chattanooga & Saint Louis Railway

37 Ga. App. 670 | Ga. Ct. App. | 1928

Lead Opinion

Bell, J.

The plaintiff brought a prior action against the Western & Atlantic Railroad, and a judgment sustaining a general demurrer to that suit was affirmed by this court. McCrary v. Western & Atlantic Railroad, 35 Ga. App. 641 (134 S. E. 347). The defendant in that ease had offered no reward, and was, of course, not bound by the offer of the Nashville, Chattanooga & St. Louis Railway. A person offering a reward may prescribe whatever terms he sees fit, and these terms must be substantially complied with before any contract arises between him and another who claims the reward. The offer of the reward in this case was for information resulting in conviction, and, unless there be something to render allegation and proof of a conviction unnecessary in the particular case, the plaintiff can not recover without showing that he furnished to the defendant information touching the guilt of some person of the crime mentioned, and also that the information resulted in his conviction. Williams v. W. C. Ry. Co., 191 Ill. 610 (61 N. E. 456, 85 Am. St. R. 278). In the first count of the petition the plaintiff proceeds on the theory that the culprit was duly convicted, and hence gives no reason for a failure to convict. This count is bad because the proceeding before the juvenile court was not a trial for an offense, and the commitment by that court did not amount to a conviction. The only adjudication was that the child was a delinquent. See Williams v. Davidson, 147 Ga. 491 (94 S. E. 564). The defendant’s offer clearly contemplated a conviction on a prosecution for the offense, in a court of competent jurisdiction (see Penal Code (1910), §§ 513, 522); and such a conviction could not be had in a juvenile court. Section 12 of the act of August 16, 1915, as amended August 19, 1916 (Ga. L. 1915, p. 34; Ga. L. 1916, p. 58; 11 Park’s Supp. 1922, § 900 (1); Michie’s Code, § 900 (12)), providing for the establishment of juvenile courts, expressly declares that “No adjudication under the provisions of this act shall operate as a disqualification of the child for any office, State or municipal, and such child shall not be denominated a criminal by reason of such adjudication, nor shall such adjudication be denominated a conviction.” Counsel for the plaintiff in error suggests that the legislature intended by this section merely to prevent the child’s loss of the privileges of citizenship or to protect his good name, and that this was the only purpose of the language used. Regardless of other things which the legislature may have had in mind, we think the main object of this section was to so limit the jurisdiction of the juvenile court that it might not infringe upon the jurisdiction of the superior court and thus endanger the constitutionality of the act creating the former court. See Law v. McCord, 143 Ga. 822 (85 S. E. 1025); Hicks v. State, 146 Ga. 706 (92 S. E. 216); Williams v. Davidson, supra.

The plaintiff would not be entitled to claim the reward in this case merely by proof that he had furnished information resulting in an adjudication that the person apprehended by him was a delinquent child. Even though this adjudication may have served to identify the child as having committed an act specified in the defendant’s offer, the purpose of the railroad company in offering the reward was not simply to identify the perpetrator of the act, but to find and punish him as a criminal. The suit being predicated on an alleged contract, it is necessary to ascertain the intention of the railroad company as 'expressed in the offer which the-plaintiff claims to have accepted and complied with. The company’s offer was to pay “for information resulting in the conviction of any one for the crime” specified. Even the amount of the offer, in the large sum of $5,000, would tend to show that the mere identification of one as having tampered or interfered with the defendant’s property was not the thing desired. From all the language used, it is evident that the company was not seeking to satisfy a simple curiosity, but was desirous of bringing punishment upon the guilty party at the hands of the law, one of the purposes being to deter others from similar deeds and thus to add to the security of its property and to the safety of those who might operate or travel upon its trains. We conclude, therefore, that the first count of the petition failed to set forth a cause of action.

The defects inherent in the first count were not excluded from the second count by the allegations purporting to show that the conviction was prevented by the act of the defendant. The suspect was a mere child of the tender age of twelve years, and a person of this age can not be convicted of a crime or misdemeanor unless it appears from the evidence that he was capable of crime, and the burden of proving this fact rests upon the State. Brown v. State, 12 Ga. App. 722 (78 S. E. 352); Mallard v. State, 28 Ga. App. 570 (112 S. E., 296). It is our opinion that the petition did not set forth such facts as would render a conviction probable, and it is the merest speculation to say that the jury would have found the prisoner guilty had he been tried in a court having jurisdic-, tion to adjudicate that issue. In the case of Stephens v. Fulford, 153 Ga. 637 (112 S. E. 894), an attorney was employed to procure a pardon for a person who had been sentenced to and was confined in the penitentiary. The attorney’s fee was contingent on securing the pardon. While the application was pending before the Governor, with a favorable recommendation by the prison commission, the convict escaped, and his lather, who had engaged the attorney’s services on the terms stated,' having lull knowledge oí such escape and of his son’s whereabouts, and having the power to return him to the proper custody, refused to do so or to “let the penitentiary authorities know the whereabouts of his son,” or to assist in restoring him. The Supreme Court, on questions certified by the Court of Appeals, held: “An attorney at law can not recover the whole or any part of a contingent fee upon an express contract of employment, where the contingency provided for by the contract has not been brought about, although the entire work or service of the attorney has been duly performed, and although the possibility of the contingency being brought about is prevented by the subsequent wrongful conduct of the person for whose benefit the services were engaged, and with the subsequent continuing passive acquiescence of the client. Whether the undertaking would have proceeded to a successful or unsuccessful final determination had the client not passively acquiesced in the wrongful conduct is necessarily merely conjectural, and could not be considered in determining the question of liability.” Counsel for the defendant cite the case of L. & N. R. Co. v. Goodnight, 73 Ky. 552 (19 Am. R. 80), in whicli the Supreme Court of Kentucky, on facts similar to those now before us, with the exception of the ages stud the capacity of the persons apprehended, reached the conclusion that the reward could be collected; but being of the opinion that the above decision by our own Supreme Court is directly applicable, we.deem it unnecessary to comment on the Kentucky case.

There is no similarity between the present case and those cases in which it has been held that one who has been employed to consummate a sale of real estate is not to be denied compensation for his services where it appears that he has done all that he was required to do under the contract, and the sale was prevented by the refusal or interference of the owner. In that class of cases it is at least necessary that the agent bind a purchaser. Certainly a jury would not have been bound to convict the accused under the facts set forth in the petition in this ease. It not even appearing that the alleged offender would probably have been convicted had the defendant not interfered, it can not be said that his conviction was prevented by the act of the defendant. Furthermore, if the person alleged to have been discovered by the plaintiff is in fact guilty of the crime specified, may he not yet be subject to trial and conviction in the superior court, should the grand jury see fit to indict him and should the officers of that court deem it proper to try him; and has the same not been true all the while since the moment of his arrest? Hicks v. State, and Williams v. Davidson, supra. If so, how can it be said that his conviction was prevented by the defendant?

In pur view of the case, it is unnecessary to determine whether the offer of reward as made by the railroad company contemplated the line of road on which the switch was turned. Each count of the petition failed to set forth a cause of action, and the general demurrers were properly sustained.

Judgment affirmed.

Jenkins, P. J., concurs.

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Dissenting Opinion

Stephens, J.,

dissenting. The word “conviction,” as used in the offer of a reward, does not necessarily bear the same construction as where used in the juvenile-court act. As used in the defendant’s offer, it should be given a non-technical construction. The offer of a reward should be construed with due regard to the evil sought to be obviated by the railroad. The railroad was necessarily seeking, in the interest of the safe operation of its train, the prevention of the criminal acts referred to, by the capture and punishment of any one guilty of such acts. It would seem that the trial of one in the juvenile court, and the adjudication of his guilt of any of the acts designated in the offer of a reward, and his commitment to the juvenile reformatory would have a deterrent effect upon the commission of such acts as contemplated by the defendant. I therefore am of the opinion that the trial of the boy in the juvenile court and his commitment to the State reformatory for the “offense of attempted train-wrecking” is a conviction in the sense in which this word is used in the defendant’s offer. And being of the further opinion that, under the facts alleged in the petition, the defendant’s offer of a reward applied to the Western and Atlantic Eailroad in Bartow county, I am of the opinion that the petition in the first count set out a cause of action, and that it was error to strike the plaintiff’s petition in its entirety. I can not concur in the judgment of affirmance.