South Carolina Railroad v. Nix

Jackson, Chief Justice.

1. In this case, the record showed that bills of exceptions pendente lite had been taken and allowed in the superior court during the progress of the case, but no mention was made of them in the bill of exceptions finally certified, and which brought the cause before this court by writ of error, and no assignments of error are made thereon in that final bill of exceptions.

Thereupon the plaintiff in error moved to assign error on these interlocutory bills of exception, which appeared legally certified and allowed in the transcript of the record.

The motion must be granted under section 4250 of the Code, and the practice of the court in regard thereto and in construction thereof.

The only object of a bill of exceptions is that the judge may certify that which transpires before him, and which is not otherwise of record. When that is once done it need not be repeated ; and, therefore, where he has allowed and made record of an interlocutory bill of exceptions by certifying it once, he need not repeat the certificate in another and the final bill of exceptions, and such is the express language and sense of the statute. It enacts: “ But at any stage of the cause, either party may file his exceptions to any decision, sentence, or decree of the superior court, and if the same is certified and allowed, it shall be entered of record in the cause, and should the case, at its final termination, be carried by writ of error to the supreme court by either party, error may be assigned upon such bills of exception,” etc. What bills of exception ? Of course, those thus certified and entered of record.

If either party takes the case up by writ of error, error may be assigned on these bills of exception by the party which so excepted.

So that, although one party sued out the writ of error by the final bill of exceptions, the other may assign error on these exceptions thus found in the record. This is a right he could not exercise in the bill of exceptions of his adversary without his consent, and hence he can only assert it independently by assigning error on his own bills of exceptions certified before by the judge, and found'in the record.

Nor is there any trouble in regard to want of notice to the other side. The record of what transpires in court in a case is always notice to parties. When these interlocutory bills of exceptions are certified and allowed and made record, the other party has notice, and must prepare to meet the assignments of error thereon, which his adversary has the legal right to make on the calling of the case in this court.

2. The plaintiff is the administrator of a decedent who was killed by the defendant in the state of South Carolina, on the South Carolina railroad, about three miles from Augusta. Letters of administration were issued to the plaintiff in that state, who complied with the law as contained in section 2615 of the Code of this state, and was thereby entitled to sue, by virtue oí sections 2614 and 2615 of the Code, in the courts of this state. The defendant, the South Carolina Railroad Company, by an act of the general assembly of this state, was empowered to cross the Savannah river and run their road into Georgia at Augusta, on condition, or with the provision, that suit might be. brought against it in this state on “ all claims ” upon it.

This isa claim upon it by virtue of a statute of South Carolina, which authorizes the administrator of a decedent to sue the road for the homicide of the husband and father for the benefit of the widow and children, and this administrator, though appointed in another state, having complied with our terms enacted in the sections of the Code above cited, has the right to sue in this state. The defendant is an artificial person created in South Carolina; yet Georgia permitted this creature of South Carolina to put foot on her soil, and the corporation thereupon accepted the privilege or franchise to do so and agreed thereby to be sued here. Richmond county is the locus — the venue— which the stranger occupies in Georgia, and where, by the agreement, this stranger may be sued. By the spirit of decisions of this court (43 Ga., 461; 49 Ib., 106; 52 Ib., 565; 59 Ib., 426; 61 Ib., 132), and that of the supreme court of the United States, in 103 U. S. R., p. 11, which latter case fully covers this point, the claim to sue, or cause of action growing alone out of the South Carolina statute, maybe brought and enforced,in this state, under the facts above narrated. Whilst, doubtless, the right to sue this company in this state was acquired by Georgia when permission was given this railway company to enter Georgia, for the benefit of her own people, as is said in 64 Ga., pp. 18-30, nevertheless, when she acquired this right to sue for her own citizens, the constitution of the United States gave it to the citizens of all the other states of the Union. Constitution of the United States; Code of Georgia, §5209. A citizen of South Carolina might, therefore, have sued here, and an administrator in that state, on complying with our law in respect to suits brought by foreign administrators, has the same right and may sue.

3. By the assignments of error on the interlocutory bills of exceptions it is insisted that the declaration is bad, because by the South Carolina statute, as construed by the courts of that state, 15 Rich., 201, it should appear that decedent left a parent, or wife, or children, and no averment to that effect is' made. The court so ruled in this case, but allowed the plaintiff to amend by the allegation that the decedent left a wife. By the decision in 15th Richardson, the amendment was allowable and was properly granted. And we think also that it was properly granted in respect to setting out in the declaration the South Carolina statute.

4. When amended, the amendment relates back to the original declaration, and the date of its filing is the date from which the statute of limitations will be counted. Such is the ruling of this court in 63d Ga., 243, Rutherford, executor, vs. Hobbs, and such we presume is the law of South Carolina. The practice of thzlex fori, in respect to pleadings, amendments-and the general mode of procedure would prevail, however, even if the rule were different in the courts of the state where the injury occurred. 49 Ga., 106. But it seems that the courts of South Carolina rule that there is enough to amend by in such an original declaration as this was, and would not allow the defect to be taken advantage of in arrest of judgment, which is the test. 15 Rich., 201 supra.

We see no error, therefore, in the assignments of error made here on the interlocutory bills of exceptions, which are that there was nothing to amend by, and that the statutory bar should have been applied, because over two years had elapsed from the date of the homicide to the date of filing the amendment.

The action, therefore, in our view of the law, was in court on a good, substantially good, declaration, having been amended in substance as allowed since the act of 1853-4, Code, §3479, by the laws of this state, and also by the law of South Carolina.

5. We come, then, to errors assigned on the charges and refusals to charge on the merits of the case.

On the 6th ground it is alleged substantially that the court erred in charging, that if the train was in motion the conductor was not bound to stop it and receive fare from the passenger ejected for not' having paid it when demanded, but inferentially that he ought to do so if the train was not in motion when the tender was made. We think that the charge accords with good sense, and is good law.

6. A fortiori we think the charge that if it was tendered before ejection but after the first failure to pay on demand, then the conductor should have received it and not ejected the passenger, must be good law, and therefore the seventh ground was properly overruled. The refusal to charge as requested in the ninth ground is covered by the above ruling and must abide the same fate.

7. The South Carolina statute does not require a prosecution for the homicide if felonious, and the Georgia jurisdiction does not extend over South Carolina in prosecutions for crime; therefore there was no error in overruling the tenth ground, even if the crime had been committed while Georgia statute or laws required such criminal prosecution before a civil action for damages would lie.

8. The refusals to charge as requested in the eleventh and twelfth grounds of the motion, which are to the effect that the killing must be shown to have been done by the particular train from the cars of which the passenger was ejected, and that damages for the killing by another train subsequently passing over the body could not be recovered under this declaration, must be considered in connection with the allegation in the declaration and the charge given by the presiding judge and excepted to in the eighth ground. The declaration avers that the plaintiff “ was violently and forcibly ejected and thrown from said cars by the defendant, and by its agents and servants in the course of their employment, and in being thus forcibly and unjustly ejected from said cars, as aforesaid, was thrown thereunder and run over and killed thereby.”

The charge given by the court is, “that if you believe that Brown was killed by the second train and that the first train was in no wise connected with the injury, then the plaintiff is not entitled to recover in this action, but if you believe that Brown was injured by the wrongful act of the conductor of the first train, the defendant is re. sponsible though he was actually killed by the second train.”

The allegation is that *‘he was thrown thereunder and run over and killed thereby.” The charge is to the effect that if he was thrown thereunder and thereby injured by the wrongful act of the conductor, and run over even by the second train and killed, having been first injured by the act of the conductor of the train whence he was thrown, then the company would be liable. Is this charge error? We do not think so. It might have been plainer, but it is clear that if this passenger was thrown under the first train and injured thereby so that the next train ran over and killed him in consequence of that injury, the allegation in the declaration would support a recovery therefor; because the act of killing would necessarily have been the joint act of the two trains, the first disabling him by the injury inflicted in throwing him under it, and the second train consummating the wrong by the actual killing or extinction of all the life left in him.

Suppose the second train, instead of passing over the road in one hour, had passed in five minutes, and he had been thrown under the first and been disabled, and then the second had rushed over him and extinguished life, would not the allegation have supported the charge ? If so, why not if he lay there disabled for an hour, and was then run over by the second train and life then extinguished ?

Suppose there had been a prosecution for murder, who would be found guilty thereof, the conductor of the train who did the deed of throwing him off and under, or the conductor of the other train who ran unconsciously over him ? Clearly he who did the intentionally wrongful act, and whose act caused his death.-

Mark it, the allegation is not specifically that the train from which he was ejected ran over him, but that he was run over after being thrown thereunder, without alleging by what train, and killed thereby, that is by being run over. It is enough if he was run over by any train, and that train ran over him and killed him because of injuries received by being thrown out of and under the first train.

Besides, we do not think that a reversal on this charge and these refusals can alter the final result. The declaration could be amended so as to embrace the second train, if need be, and the evidence is almost overwhelming, if not quite so, that the whole injury, killing and all, was done by the first train. The other may have struck the dead body and dragged it afterwards. In law the killing by either train would give a right of action. 60 Ga., 441.

9. The verdict is abundantly sustained by law and evidence.

In our judgment it ought to stand. Whilst conductors must necessarily have control of cars and passengers, and. be invested with much power in regard to the collection of fare and the orderly conduct of passengers, and may eject the passenger if he does not pay, or put him off if unruly, yet it must be done with great regard to the safety and preservation of limb, and much more of life, of that passenger over whom the power is exerted.

Judgment affirmed.

Cited for plaintiff in error: Rosen on Inter.Stat. Law, p. 155 et seq.; 167 et seq.; 64 Ga., 25, 30; 65 Ib., 496; 55 Ib., 194; 15 Rich., 201; 43 Ga., 461; 49 Ib., 106; 15 Gray, 20; 29 Am., 458, 471; 30 Ib., 611, 606; 52 Ga., 466, 467; Redfield’s R. R. Cases, vol. n, p. 440; 1 Redfield on Railways, p. 95; 7 Metcalf, 596; Central Law Jour., July 16, 1880, p. 47; 47 Iowa, 82; 32 Ohio, St., 345, 38 Ga., 409; 61 Ib., 151.

For defendant: Code, §4250; 56 Ga., 230; 59 Ib., 146; 9 Rich., 84; 4 Ib., 61; 10 Ib., 227; 103 U. S., 11; 59 Ga., 426; 52 Ib., 465; 61 Ib., 132; 49 Ib., 106; 43 Ib., 461; L. & N. R. R. vs. Garrett, Sup. Court Tenn., 1881; 55 Cal., 570; 36 Am., 50; 60 Ga., 441; 59 Ib., 593; 64 Ib., 306; 29 Am., 681; 9 Ib., 437; 5 Cal., 460; 38 Conn., 557; 30 Am., 602; 35 Ib., 279; 34 Ib., 277; 60 Ga., 441.