24 Ga. 356 | Ga. | 1858
By the Court. delivering the opinion.
This is an action for damages, against the South Western R. R. Company, for having destroyed the life of defendant in error’s intestate, while a passenger on plaintiff in error’s train, in the county of Taylor, in December, 1855.
Counsel for the Company insists, 1st. That this act does not embrace Railroads; and 2dly. That if it does, it impairs the obligation of the contract between the corporation and the people of the State, which was entered into five years before the act of 1850 was passed; and was therefore void.
Railroad Companies are not expressly included or excluded by the words of the act. The terms used are, "perpetrators of the injury,” and " persons committing the act.” Now the well settled rule of construction is, that corporations are embraced in the words of a statute under the designation of persons, unless expressly excepted or excluded by necessary implication, on the ground of the total inapplicability of the statute, as to the subject matter, to them. (8 Peters’Rep. 426; 11 Wheaton, 412; 16 Curtis, 643; 6 Peters’, 29; 12 Peters’, 134; Dwarris, 478, 476, 655.) Tested by these rules, it is clear that the act of 1850 extends to and embraces R. R. Corporations. The word person, both in civil and penal statutes, applies to artificial as well as natural
When subscriptions were made to the stock of this road it must be presumed to have been done with a full knowledge that the legislature had this power.
This doctrine, in England, is true, for certain purposes and to a limited extent. For the purposes of taxation, building bridges, &c., corporations who own real estate in any county, will be included under the words, “ inhabitant of the county,” &c. And be liable there to all the litigations incident to such statutes. (Central R. R. Co. vs. Davis, 17 Ga. Rep. 323, and cases there cited.) Still, notwithstanding corpora-
Is the Act of 1850 in conflict with the Act of 1856? We think not, and for the reason already intimated, in considering the question of jurisdiction. The 4th section of the Act
That death ensued in this case from the gross misconduct of the conductor is indisputable. Candor constrained the counsel for the road to make this concession; it is unnecessary therefore to enter into a minute investigation of the question of diligence, &c. Against the doctrine contained in the charge, however, the case of Gollins against the Albany and Schenectady R. R. Company, (12 Barbour’s Rep. 492,) has been cited. Upon examination it will be found that it does not sustain the contrary proposition. The injury in the New York case was occasioned by the defendant’s leaving his seat and going upon the platform, “ as if to go out,” when the collision was about to take place. “The jury fixing their attention,” as the Court said, “ upon what seemed to them the more immediate cause of the disaster, found as a fact in the case, that the plaintiff was entirely free from negligence.” And then Judge Harris adds, “ And perhaps, after all, the jury were right in their conclusion, that the mere fact of leaving his seat and going to the platform, under the circumstances, did not amount to negligence on the part of the plaintiff.” A multo fortiori, did it not in this case.
But the opposite principle from that contended for by the able counsel for the plaintiff in error is abundantly fortified by authority. (13 Peters’ Rep. 181; 13 Curtis, 115;
In the case of Stokes vs. Saltenstall, cited from 13 Peters’, the Circuit Court charged, and the Supreme Court affirmed, the instructions as law, that “ if the want of proper care or skill of the driver of a stage coach, placed the passengers in a state of peril, and they-had at that time a reasonable ground for supposing that the stage would upset, or that the driver was incapable of managing his horses, the plaintiff is entitled to recover, although the jury may believe, from the position in which the stage was placed by the negligence of the driver, the attempt of the plaintiff, or his wife, to escape, may have increased the peril, or even caused the stage to upset; and although they may also find, that the plaintiff and his wife would probably have sustained little or no injury, if they had remained in the stage.”
Mr. Pierce states the rule thus: “If through the default of the Company, or of its servants, the passenger is placed in such a perilous condition as to render it an act of reasonable precaution, for the purpose of self-preservation, to leap from the cars, the Company is responsible for the injury he receives thereby, although if he had remained in the cars he would not have been injured.” And the author cites, in addition to the cases already quoted, 9 Metcalf, 1; 15 Illinois, 468, 471; 17 Ib. 509 ; 1 Sandford, 89.
It is admitted that in actions of this sort, the jury cannot find vindictive, punitive, or exemplary damages; and that they are confined to injuries of which a pecuniary estimate can be made; and that they cannot take into consideration the mental sufferings occasioned to survivors, by the death. Such has been the uniform construction put by the British Courts upon the 9 and 10 Victoria Ch. 93, which is almost identical with the act of 1850. (12 Eng. L. and E. Rep. 437; 2 Eng. C. L. Rep. 578.)
In ascertaining what shall be this cash payment, another consideration in addition to the law of average is be observed, to-wit: The value in interest of the use and interest of the $469 03, which, as it increases, balances any exceptional breaches of the law of average. For example: invested at 10 per cent., and experience shows that cash invested in life insurance companies readily realizes that amount — the sum of $469 03, compounded every year, will amount to upwards of §1,000,the suminsured,in seven years. Therefore, at the end of seven years, the company will not suffer by the death of the individual; and will reap clear profit every day after that time. Their risk, therefore, is not on the average duration alone of human life, but conjointly with the increasing value of a specific sum of money.
We are not satisfied, however, with this rule of computation. For it is based upon the idea of a large profit resulting to the insurance company; their calculations, while professedly founded upon the idea of 20 years duration of life, is, in point of fact, staked upon the risk of 7 years only. Besides, the party is killed, and an estimate, applicable only to the living — whose lives may actually be insured — cannot fairly and legitimately be predicated of the dead; still, we do not absolutely reject it.
Taking 20 years, again, as the average of human life, what is the present value of an annuity of $1,000 upon such a life? $10,594. (fSee Encyclopaedia Brit. Title, Annuity.) If the annual value of his life was $500, then the present worth would be half that sum. If $750, then three-fourths the amount
I have made no allusion in this latter calculation, to the yearly expenses of the party, which is ordinarily to be deducted from the annual income.
It may be objected to this rule, that whatever may be adopted as the present value of one’s services, it offers no security for the future. They may, hereafter, yea, the very next year, be worth a great deal more or a great deal less. He may become a cripple; helpless, and earning nothing thereafter, the remainder of his life. That by change of circum
The best reply to all this, is, the uncertainty of all sublunary things. One kills your slave; you recover of him a thousand dollars. Had he been letaloiie, he might have died of disease in less than a month’s time after his life was taken. You buy or sell a slave at $1,000: he is sound, but is killed by the falling of a tree, or of apoplexy, the next day. The loss has to be submitted to. „ This objection is rather specious than substantial.
In any view of the question of damages, something is due, independent of income, for the loss of the care, protection and assistance of the husband and father. Indeed, there are so many elements entering into the account, that in whatever light we look at the subject, we become perplexed in the attempt to pursue it. There must be some latitude .left to the soundness of the discretion of the jury, over the subject, as a question of fact. And the greatest, if not the only protection against the abuse of this discretion, must be found in the stern determination of the Courts, not to allow a verdict to stand, which bears the impress upon its face, of passion, partiality, or prejudice.
Look at the persons who compose the passengers upon a railroad train, and who are smashed up by one of these disasters. Seethe variety of ages, sexes, conditions, avocations of the crowd; doctors of divinity and of medicine, judges and lawyers, planters, merchants, mechanics, manufacturers, bankers, teachers, men, women and children: to apply a uniform rule, by which to compensate for the life of each, would require more than the wisdom of Solomon in all his glory. But we dismiss the subject, at least for the present.
“Sec. 1. For remedy whereof, be it enacted, That from and after the passage of this Act, it shall and may be lawful for any administrator or administrators, and administratrix, for any executor or executors, and executrix, or guardian, oí any deceased person or persons who may have departed this life in another State, and a citizen or citizens of such other State, at the time of their decease, owning at said time any judgments,” &c. Cobb, 341.
Passing by the criticism that Mr. Paulk had no cause of action in this State, nor any other, for the loss of his owu life, at the time of his decease, it is clear, that to entitle a for - eign administratrix to sue in her representative character, in this State, her intestate must have departed this life in Alabama, or another State than Georgia, and been a citizen thereof at the time of his death. In this case, the declara - tion shows upon its face, that the intestate died in Taylor county, in this State, when the proof shows, that he was p, citizen of Alabama at the time he was killed.
It is insisted that the rale which excludes foreign trustees, is a mere technical regulation, and should be disregarded, especially as between the several States of the American Union
It is a general doctrine of the common law, recognized both in England and America, that no suit can be maintained! or brought by any executor or administrator, in his official capacity, in the Courts of any other country except that from which he derives his authority. The authorities upon this point are exceedingly numerous and conclusive. 3 P. Wms,
We fully appreciate the ingenuity of the argument submitted by Mr. Hill, upon this point.. And it may be, that this case falls within the mischief intended to be provided for by the Act of 1850. Still, it is unquestionably excluded by the obvious words of the Act. Unless, then, we are prepared to legislate on this case, and to extend the’ Act, not only to a case not covered by it, but excluded, by all fair interpretation, this action must fail. To prevent a .failure of the law, we might usurp the power proposed; but confining the Act to its terms, it embraces a large class of cases; and therefore, we can give it full operation without stretching its language. We are unwilling to do this.
The Legislature may have had a motive for restricting the Act to cases where the testator or intestate died abroad. Many Northern persons'and others, coming to this State to transact business temporarily and return, die here. Many of them leave debts, more or less. In this very case the deceased was probably indebted for board, physician’s bill, &c. It may^ have been in the mind of the Assembly, that in such cases, administration should be taken out here, and not drive domestic creditors to go abroad to collect their claims. Be this as it may, the words of the Act are so plain, that it would require no small degree of judicial boldness to disregard them.
We are unanimous, then, in reversing the judgment ofthe Court below, upon this ground. Nor can-the writ be amended by substituting the name of the widow. The right accrued under the Act of 1850, and must be enforced under that Act, or not at all.
Judgment reversed.