5 Ga. App. 21 | Ga. Ct. App. | 1908
(After stating the foregoing facts.)
The courts of this State will give to a statute of a sister State the same meaning as is given it by the courts of that State. Georgia, Fla. & Ala. Ry. Co. v. Sasser, 4 Ga. App. 276 (61 S. E. 506 (7b)). Nevertheless, the courts of this State will decide for themselves whether the statute as construed-by the courts of the State of its enactment is in fact penal, in the sense that this term is used as to questions of private international law and the comities arising thereunder, or is contrary to our public policy; and to this end may disregard language employed by the local tribunals in describing the statute, or in designating the nature of the damages that are awarded thereunder. Huntington v. Attrill, 146 U. S. 657, 683 (36 L. ed. 1123, 13 Sup. Ct. 224); Evey v. Mexican Central R. Co., 81 Eed. 294 (38 L. R. A. 387, 393, 26 C. C. A. 407); Whitlow v. N. C. & St. L. R. Co., 114 Tenn. 344 (84 S. W. 618, 68 L. R. A. 506). The courts of nearly every civilized State or
We shall therefore first inquire, is the statute penal? On its iace it is not so; it purports to award damages, and not a penalty. It is hardly supposable that a civilized State would, for the violation of one of its penal statutes, pursue vindication even, beyond the death of the lawbreaker and entail punishment upon the innocent distributees of his estate; and yet such would be the case if this statute were held to be penal-; for, by its terms, “such action shall not abate by the death of the defendant, but may be revived against his personal representative.” The suggestion that it ,is penal is prompted mainly by certain expressions that .are to be found in the decisions of the Supreme Court of Alabama construing it. For example, in the case of Savannah R. Co. v. Shearer, 58 Ala. 672, which arose soon after the passage of the act in question, the court said: “Prevention of homicide is the purpose of the statute, and this it proposes to accomplish by such pe
In the case of Southern Ry. Co. v. Bush, 122 Ala. 470 (26 So. 168), the Supreme Court of Alabama had the question before it as to whether the defendant in an action under this statute is exempt from discovery, by reason of the constitutional guarantee against compulsory process to compel any one to answer any question the answer to which would tend to incriminate him or expose him to a penalty or forfeiture; and that court decided that the defendant was not exempt from discovery, saying, among other things: "While the damages recoverable are undoubtedly, under our former rulings, punitive in their nature, and not compensatory, they’are not in a strict sense a penalty; nor is the action penal or quasi criminal, within the meaning of the constitutional provisions as above .construed. The statute is remedial and not penal, and was designed as well to give a right of action where none existed before as to prevent 'homicide;’ and the action given is purely civil in its nature, for the redress of private, and not public wrongs.” In the Freeman, case, 97 Ala. 289 (11 So. 800), the statute is held to award punitive damages to the plaintiff, but not to be penal in the sense of vindicating the public justice of the State. In the case of Huntington v. Attrill, 146 U. S. 657 (13 Sup. Ct. 224, 36 L. ed. 1123), the Supreme Court of the United States went at length into the discussion of what were penal laws in the private international sense; and by none of the tests there enunciated is the statute before us a penal law. That the damages are punitive does not render the statute which prescribes them penal. As is said in Minor’s Conflict of Laws, §198, “With respect to punitive damages, also, if the case is one for which such damages may be given in the discretion of the jury under the lex delicti, that law will govern the legal right to demand such damages in another State, unless the lex fori should expressly prohibit punitive damages, or the enforcement of the lex delicti in this respect
Of course the bringing of an action to recover for negligent homicide is not repugnant to our public policy; we have a statute authorizing it, and our courts daily-award damages for that character of wrong. Civil Code, §3828. Indeed, the case of Central R. Co. v. Swint, 73 Ga. 651, was sustained by our Supreme Court under this same Alabama statute, and the case of Selma, Rome &
It is difficult to persuade mankind that to kill a person wrongfully does not damage him. It is a superlative damage. Even the sanctity of a common-law maxim was not sufficient to answer the demand for some redressing of such wrongs; and England and most of the American States have passed statutes recognizing the civil quality of the injury, creating a survivorship, and prescribing remedies for the assessment of damages against the wrong-doer. These enactments vary greatly in detail — naturally so; for how shall that priceless possession, a man’s life, which “eonsisteth not in the abundance of the things which he possesses,” be valued in terms of dollars and cents? For an unlawful homicide there can be no conceivable measure of damage which is more than a speculation; not even an approximation is possible; in the broadest sense the expression “the value of a man’s life” is but a figure of speech.
As the will of the lawmaking power in the respective States became fixed upon the proposition that civil damages ensue to persons wrongfully killed, and that a right of action to recover such damages should survive, it became necessary, in order to make this will effective, that legislative ingenuity should find some way •of converting the' quantum of the injury into denominations of dollars and cents. Adequate redress being beyond human power to give, it is not unnatural that the different intellects who come to deal with the varying phases of those subordinate injuries, of which, as the aggregate, the summum delictum of wrongful death consists, one aspect should appeal most strongly to one, another to another. In some States the legislatures specified concretely the elements of damage which appealed strongest -to them; in •others they made provision in general terms for the allowance o’f
This brings us to the Alabama rule: the plaintiff can not prove any so-called expectancy of the deceased as to years of life or earning capacity, nor recover for lost potentialities of companionship or comfort, etc., but may recover a sum, to be assessed by the jury, based solely upon the quality of wrongfulness in the act of the defendant which was the immediate cause of the death. The damages thus assessed are, therefore, compensatory to the deceased, not for earnings, joys, and comforts which, but for the killing, he might have enjoyed, but for the wrong of being killed in the manner and in the spirit in which his slayer acted. This is not a new view. My neighbor slaps me in the -face; he really doesn’t hurt me enough to make that -a matter for consideration. I suffer absolutely no financial loss; but I recover heavy punitive damages, based on
The courts of this State, especially in the enforcement of private international law, will display no partiality between rival'theological bases for legislative or judicial action. As Justice Lumpkin sententiously said in the case of L. & N. R. Co. v. Wilson, 123 Ga. 62 (51 S. E. 24), “Death is unique;” and we shall feel it our duty to enforce, where applicable, the varying homicide statutes of our sister States, irrespective of whether the measure of damages recognized by the lex loci delicti is superinduced by Arminian or by Calvinistic tendencies.
As to the point that the courts of this State should refuse to enforce the Alabama statute in the present case, because the courts of that State will not enforce our homicide statute under similar circumstances, we may say that we recognize no such limitation - on the general rule. The saying “reciprocity is comity,” quoted by counsel from the opinion in Kyle v. Montgomery, 73 Ga. 354, is of limited application, as appears from the context in which it appears. While the Civil Code, §1817, opens the doors of the courts of this State to suitors domiciled in other States so long as the courts of those States 'accord our citizens the same privilege, this does not require that the courts of the sister States shall afford citizens of this State any remedy additional to what they do their own. In Alabama there is no provision for suing a non-resident corporation upon any foreign cause of action; and this applies as well to citizens of that State as to non-residents. Pullman Co. v. Harrison, 122 Ala. 149 (25 So. 697, 82 Am. St. R. 68). It may be true that the courts of Alabama do not enforce the laws of other States as broadly as we do; we have no concern with her policy in
By a recent statute, adopted since the present suit was instituted, the legislature of Alabama has provided that suits under its'homicide statutes shall be brought only within the courts of that State. See Code of Alabama (1907), §6115. Even if this statute had been in force at the time the suit was instituted, it would have been the duty of the courts of this State to disregard it. Our own sense of justice, subject to the guidance of the lawmaking power of this State, determines solely and alone what laws, domestic or foreign, we will enforce; and this discretion is subject to neither limitation nor extension by the legislature of any other State.
Judgment affirmed.