5. In admitting doubtful evidence, the better practice is not to call attention of the jury to its doubtful character; but to do so, it seems, is but an irregularity. case of assignments made by insolvent debt- | prospect of increased earnings, prospects of obtainors for the benefit of their creditors a pro-ing steady and remunerative employment, etc., the vision in the deed, to the effect that the person injured being a child nine years of age. debtor is to be employed at the expense of tance to require a new trial, or even to merit dis3. No other errors appear, of sufficient importhe assigned estate, will vitiate the assign-cussion. If any at all, they were harmless. ment, such stipulation being in the nature 4. There was no issue in the case, and no conof a benefit reserved. Burrill, Assignm. §troverted fact, to which the admission made by 198; Bump, Fraud. Conv. (3d Ed.) 402; counsel on the former trial as to ringing the bell 1 Amer. Lead. Cas. 69, 70. The most gener- upon the engine was relevant. ally recognized case on the subject seems to be McClurg v. Lecky, 3 Pen. & W. 83, in which the reservation in behalf of the debtor was an interest in the annual profits of 6. The city council of Atlanta could, by ordithe business and of the land conveyed. Com-nance adopt a city code compiled by the city attor pare Young v. Booe, 11 Ired. 347; Janney ney. The adoption, not the compilation, was the v. Barnes, 11 Leigh, 100: Rindskoff v. Gug-legislative act. genheim, 3 Cold. 284; Frank v. Robinson, all the law exacts of a child of tender years. Ordi7. Due care according to age and capacity is N. C.) 1 S. E. Rep. 781. From these cases nary care, which is that of every prudent man, is it will be seen that there is some difference not the standard for a child. of opinion, even in cases of assignment, as to whether the deed is rendered void per se by reason of embracing a provision for the employment of the debtor, and for the payment of his compenstion out of the assigned estate. But here the transaction was a straight-out sale, and the purchasers were not creditors of the sellers in any sum whatever. The property conveyed, supposing the sale to be free from fraud, neither remained the property of the debtors nor became the property of the creditors, nor was it or its proceeds burdened with the payment of the agreed compensation. As we have already said, we are unable to see how the creditors were prejudiced, provided the property brought its full value independently of the agreement. A benefit to the debtor which costs the creditors nothing, and cannot possibly cost them anything, is not fraudulent per se. 2. As to the complaint that the court gave in charge to the jury section 1952, par. 1, of the Code, we will merely say that the case falls more directly under the second paragraph of the section. Nevertheless, any trust or benefit prejudicial to the creditors which would, when matter of direct stipulation, render the conveyance vicious under one paragraph would probably have the same effect under the other, where the fact of insolvency is present as is in this case. Lukins v. Aird, 6 Wall. 78. One section may therefore be very well given in charge to the jury as illustrative of the spirit of the other. Under the facts of this case we would not consider it reversible error either to charge both paragraphs, or to charge the one only which is directly applicable. There must be a new trial for the error discussed under the first head of this opinion. Judgment reversed. WESTERN & A. R. Co. v. YOUNG. 1. The law does not contemplate absolute, but only a qualified or relative, compensation in damages for personal injuries resulting in the loss of a limb, there being no money equivalent for such injuries. 2. The damages found being extreme, if not excessive, the error of the court in charging the jury on that branch of the case is cause for a new trial; the error being in referring the jury to certain ele ments of damage as to which there was no evidence, such as habits, avocation, money made by labor, 8. The refusal to charge as requested, touching the mode of arriving at a verdict, was not error. 9. As matter of direction, this court orders that the new trial be confined to assessing the damages, the right to recover having been satisfactorily established. (Syllabus by the Court.) Error from city court of Atlanta; VAN EPPS, Judge. Julius L. Brown, for plaintiff in error. Hoke & Burton Smith, for defendant in error. BLECKLEY, C. J. 1. Viewed from a legal stand-point, the damages awarded by the jury seem to us extreme, if not excessive. We do not mean to say that, tried by an absolute standard, there is any such thing as compensation in money for the loss of an arm, or for the pain and suffering occasioned by being dismembered under the crushing wheel of a car. Only a qualified or relative compensation is possible; and the law, which is always practical, never visionary, contemplates the latter, not the former. It recognizes the restrictions imposed by many considerations, such as the limited wealth of the country, and the necessity of sparing the existence of industrial contrivances and agencies for carrying on great departments of business. In the absolute sense, damages equivalent to all the assets of a railroad company might not be excessive, nor even adequate, for a serious personal injury resulting from its negligence; but, in any practical sense, the damages in each case must be graduated so that there may be railroads left in existence, and so that all like injuries occasioned by their use may be compensated in some reasonable degree. For a few injured persons to recover amounts not so graduated would perhaps, in the end, leave nothing with which to compensate others having claims equally as strong and meritorious. We fear that juries often aim at too high a standard of damages where corporations have to pay them. Our observation is that in corporation cases the amounts found are very frequently too great, but rarely, if ever, too small. It is not a healthy state of public feeling and opinion when, through affairs of justice, a strong current runs either against or in favor of a particular class of suitors. Every thoughtful man knows that nothing is so essential in meting out justice as rigid impartiality; that is, freedom from preju dice on the one hand, and from undue sym-] are concerned with it, we pronounce it even pathy on the other. Not only theoretic- more objectionable than was the matter ally, but actually and practically, the law previously conjoined with it, and the omisis no respecter of persons; neither should sion of which we thought proper to dibe its ministers. No man can fitly admin- rect. ister law in its true spirit, either from the 3. There may be some other slight error bench or the jury-box, without being as in the record, but, if so, we are sure none impartial as the law itself. In damage of them are important enough to merit discases of the sort now under consideration, cussion; much less to furnish ground for a the law trusts implicitly the enlightened new trial. conscience of impartial jurors, and courts 4. The exclusion of the admission made can relieve against excessive verdicts only by counsel, on the former trial, as to ringwhere impartiality is to be gravely ques-ing the bell upon the engine, was altogether tioned; but they can and should do so in immaterial, because the declaration makes every case where departure from this prime no point on failure to ring the bell upon virtue is manifest. As we are constrained the engine; on the contrary, it expressly to direct a new trial in the present case on disclaims any purpose to raise such a quesanother ground, we need not further con- tion. Moreover, on reading the evidence, sider the ground of excessive damages. we find that no such question was raised by it on the part of the plaintiff. The only evidence on the subject was put in by the defendant, and that was to the effect that the bell was rung. It follows that, whethon the second trial or not, its exclusion was not of the slightest importance. 66 the jury on the subject. This course would accord with the older and sounder decisions, such as Monroe v. State, 5 Ga. 86; Potts v. House, 6 Ga. 325; Colquitt v. Thomas, 8 Ga. 273. When evidence is admissible at all, its weight is a question wholly for the jury. It would seem, however, from the last case above cited, and from what was said of Monroe's Case in Thornton v. Lane, 11 Ga. 536, 537, that any remark by the court touching doubtful admissibility of evidence is but an irregularity, and not cause for a new trial. 2. With so strong an inclination to the opinion that the damages are excessive, we hold ourselves bound to give the losing party the benefit of any substantial error in the charge of the court touching the sub-er the admission was competent evidence ject of damages. We accordingly award a new trial for error in the charge complained of in the fifty-fourth ground of the motion, 5. Notwithstanding the dictum in Railwhich is as follows: The plaintiff claims, road Co. v. Smith, 76 Ga. 209, to the effect in the first place, that his capacity to labor that, where the admissibility of evidence is and earn money during his future life has doubtful, its doubtful competency is a cirbeen permanently destroyed, as a result of cumstance on which to instruct the jury, we defendant's negligence. The law has no think it the better practice, if, indeed, not the procrustean rule for ascertainment of dam-only one strictly legal, to say nothing to ages of this sort. Health, sex, heredity, habits, avocation, money made by one's labor, prospect of increased earnings from experience or skill acquired, or diminished capacity as the result of growing years and infirmities of age, prospects of obtaining steady and remunerative employment, and the like,-all these circumstances, so far as applicable to the facts of this case, and illustrated by evidence, are proper to be considered by the jury." This same matter was in the motion for a new trial when the case was here on a former writ of error, (81 Ga. 397, 7 S. E. Rep. 912,) but was not 6. It was competent for the city council then excepted to. It was set out in the of Atlanta to adopt, by ordinance duly thirty-sixth ground of the motion, in con- passed, a city code compiled beforehand for nection with other matter which was ex-it by another person. The compiler in cepted to; and as to the latter we expressly such case is not to be treated as the legisdirected that it be omitted on the second lative power of the city, or as any part of trial. This was done. The matter now the same. The Code derives its efficacy and excepted to is so manifestly erroneous for validity wholly from the act of the council lack of evidence on which to predicate it, in adopting it, and not in any degree from the injured person being a mere child, with the act of the compiler. Garrett v. Janes, no occupation and no formed habits, that 65 Md. 261, 3 Atl. Rep. 597. As to the mode we need not mention any other reason for of proving the Code after its adoption, we condemning it. By reference to the opin-hold that question not made in the present ion in 81 Ga. 397, 7 S. E. Rep. 912, it will be case. The denial of power to enact a law in seen that we approved the charge on the a particular manner does not cover any subject of damages as given in the thirty-question as to the mode of authenticating eighth and fortieth grounds of the motion it as evidence to be received in a court of we were then considering; and our mean- justice. ing was (though perhaps not fully expressed) that the charge as set out in these grounds was not only substantially correct, but sufficient to cover the whole subject. We had no thought of approving any part of the instructions set out in the thirty-sixth ground, and did not say any thing which so indicated; on the contrary, we expressly disapproved the charge set out in that ground, in so far as we dealt or could deal with it on that occasion. With so much of it as was not excepted to we then had no concern. Now that we 7. After what we said touching ordinary care, in ruling upon this same case in 81 Ga. 397, 7 S. E. Rep. 912, we sincerely regret that counsel should have thought it proper, or even allowable, to insist, when the case was undergoing a second trial, upon that degree of care as applicable to a child. We distinctly held, and again hold, that due care according to its age and capacity is all that can be exacted of a child of tender years. This we did, and again do, with full knowledge that the Code, in general language, exacts ordinary care, with no paper) did not exceed $10. The judge of the superior court ordered the publication, and a certain newspaper, one of those named, made the publication, and the publishers afterwards presented to the judge of the superior court an account against the county for $10 as compensation. It was approved by him, and was afterwards presented to the county commissioners with a view of obtaining their order for its payment. They refused to grant the order, and a suit was brought in favor of the publishers against the county of Houston in a justice's court. Upon the trial, there being a plea that the county was not liable, etc., express exception as to children; but as ordinary care means, in our law, the care of every prudent man, there must be an implied exception as to children, for it would be absurd to require the same measure of diligence from a child as from a man. The principle of the Code is preserved when the same consequence is made to follow the omission of due diligence by a child which would follow the omission of ordinary diligence by an adult. Unless law is to have no amicable terms with reason whatever, this must be a sound view of the subject. 8. While it would be proper to instruct the jury not to bring in a verdict arrived at by lot or chance, yet we think the re-objections to evidence were overruled, and quest made to charge on the subject in this case, taken as a whole, was properly declined. It would not vitiate a verdict for the jurors severally to name a sum as a proposition, and for these sums to be added together, and divided by 12, if, after so doing, the jurors, independently of any pre-entertained of the evidence. They found in vious agreement on the subject, should favor of the plaintiffs. A petition for ceradopt the result as the finding of the whole tiorari was presented to the judge of the body. 2 Thomp. Trials, § 2602. It may be circuit, setting forth the proceedings in the that such a plan of arriving at a verdict is justice's court, and alleging errors, one of injudicious, but we know of no law which which made the point that the county was prescribes to juries the mode of making not liable. The judge declined to sanction verdicts when there is no vitiating previ- the petition. We are to inquire, now, ous agreement, and when the result is sat- whether this expense was a legitimate isfactory to the whole body, and conform-charge against the county. If it was, there able to evidence and the law of the partic- was no propriety in a suit in a justice's ular case. 9. As there have been two concurrent verdicts on the right of the plaintiff below to recover, both of which were approved by the presiding judge, and as no material error on that branch of the case appears in the record, we direct that the right be treated as established, and that the new trial be confined to the assessment of damages. Judgment reversed, with directions. HOUSTON COUNTY V. KERSH et al. the magistrate instructed the jury that the law of the case was in a certain section of the Code, but that custom, while it did not make law, might regulate law, and that they were to deliver their verdict upon the principles of equity, and the opinion they court, because, if the county treasurer could not honor the order of the judge of the superior court, we think it would be difficult for him to pay more respect to the judgment of a justice's court. But, waiving further consideration of whether the action was proper, supposing the liability to be one recognized by law, we hold that there is no provision for paying such a claim. In order for it to be paid legally, it would have to come under the term, in the constitution, "expenses of courts." Code, § 5190. It is no expense of any court; certainly not, in the absence of a statute requiring the presentments to be published. The publication of any or all of the proceedings of the superior court might possibly be provided for by the legislature, as in the case of publication of the decisions of this court; and in that event it is possible the expense of publishing presentments of the grand jury might be treated as an expense of the court. As the law stands, however, we think it is no expense of a court. To bring it within the purview of any statute now existing, it would have to be classed as "contingent expenses incurred in holding the several sessions" or "any session of the superior court," as used in sections 3691, 3692, of the Code; or as "expenses of the county for bailiffs at courts, non-resident witnesses in criminal cases, fuel, servanthire, stationery, and the like," or "any othA. S. Giles and W. C. Winslow, for plain-er lawful charge against the county," as tiff in error. John P. Ross, for defendants used in section 514, pars. 5, 9, of the Code. in error. And it cannot, without undue strain, be construed to fall within any of these proBLECKLEY, C.J. The grand jury of Hous-visions. Our conclusion is that there is no ton county recommended, in their general warrant for paying such a claim. As to presentments, that the presentments be custom regulating the law, the constitupublished in certain newspapers, provided the cost of publication (meaning in each There is no authority of law for paying out of the public funds of a county any compensation for publishing the general presentments of the grand jury. The cost of such publishing does not come within the term, "expenses of courts," as used in the constitution, (Code, $5190;) nor within the terms, "contingent expenses incurred in holding the several sessions" or "any session of the superior court," as used in sections 3691, 3692, of the Code; nor within the terms "expenses of the county for bailiffs at courts, non-resident witnesses in criminal cases, fuel, servant-hire, stationery, and the like," or "any other lawful charge against the county," as used in section 514 pars. 5, 9, of the Code. (Syllabus by the Court.) Error from superior court, Houston county; GUSTIN, Judge. 1Publication delayed by failure to receive copy. tion, in respect to public taxation and finance, undertook to regulate custom, and to put an end to a great deal that had been customary before the constitution was adopted. Authority for paying out the | made a case of gross negligence against the public money should be found in some law. company. The evidence of another witness One claiming to draw money out of the was admitted, over objection, as to what treasury of the county or the state should the plaintiff said in giving an account of be able to point to a law that clearly au- the manner of his leaving the train and rethorizes the expenditure. Kennedy v. Sea-ceiving the injury When these declaramans, 60 Ga. 612; Maxwell v. Camming, 58 tions were made, the plaintiff had pulled off Ga. 384. The petition for certiorari had his coat, detached his suspenders, bound up merit, and should have been sanctioned. his broken limb, crawled through a culvert Judgment reversed. from one side of the railway to another, seated himself on the cross-ties, and cried for help. It was late at night. A person who heard his cry reached him about half an hour after first hearing him. To this person the statement was made; and the question is, was that statement a part of the res gestæ? We think it was not. The Code 1. The plaintiff, a passenger upon a railway, (section 3773) declares that "declarations who left the train late at night, and in so doing (as he alleges) was injured by a fall which broke accompanying an act, or so nearly conhis leg, having pulled off his coat, detached his nected therewith in time as to be free from suspenders, bound up his broken limb, crawled all suspicion of device or after-thought, are through a culvert from one side of the railway to admissible in evidence as part of the res gesthe other, seated himself on the cross-ties, and cried tæ." It is manifest that the act by which the for help, his account of the manner of his leaving plaintiff was injured had completely termithe train and receiving the injury, given to a per-nated before his declarations were made, son who reached him about half an hour after first SAVANNAH, F. & W. Ry. Co. v. HOLLAND. (Supreme Court of Georgia. March 1, 1889.)1 EVIDENCE-RES GESTE-IMPEACHMENT OF WITNESS -PUNITIVE DAMAGES. hearing his cries, was no part of the res gesta, and, being mere narrative of a past event, was not admissible evidence in his own behalf. and that they were no accompaniment of the same. Were they so connected with it in time as to be free from all suspicion of de2. When, on cross-examination, a witness is in-vice or after-thought? He had turned his terrogated as to a conversation with a view to lay-attention from the act to measures looking ing the foundation for impeaching him, he has a right to give the whole conversation so far as it is pertinent; and this, without reference to whether the other interlocutor was an agent of the crossexamining party or not. to his own safety and comfort. He had certainly occupied his thoughts with something besides the facts and circumstances to which his declarations related. He had 3. When one, in the interest of a party to the full opportunity, although, no doubt, under cause, has maneuvered to entrap or corrupt an ad- great suffering, to devise a story in his own verse witness, and the evidence suggests that he interest; and there is no reason for concludwas sent on some mission to the witness by an at-ing that he did not have capacity to take torney of the party whose interest he sought to promote, the court may charge the jury on the question whether his authority, if any he had, was pure or impure; whether it was limited to the use of proper means for the attainment of right ends, or extended to such means as were actually used, and to ends apparently improper and illegal. Both the fact and the nature of the agency are open to the jury, and the evidence warranted the consideration of both. 4. In order for the jury to assess punitive damages in an action for a tort, it is not necessary that they shall be claimed co nomine in the declaration. It is enough that the facts alleged and proved be such as to warrant the assessment. (Syllabus by the Court.) Error from superior court, Mitchell county; FORT, Judge. For a former report of this case, see 9 S. E. Rep. 1040. Chisholm & Erwin, for plaintiff in error. W. M. Hammond and Spence & Twitty, for defendant in error. BLECKLEY, C. J. 1. The plaintiff below, Holland, being a passenger upon the train, was carried past the station at which he wished to stop. Discovering the fact, he requested the conductor to let him off; and a vital question in the case was whether he alighted safely, and received his injury afterwards by falling through a trestle on his way back to the station, or whether he fell through the trestle in alighting by reason of being forced or pushed off at that point by the conductor. There is no doubt but that he was seriously injured by his fall, his leg being broken. No one witnessed the fall. He testified in his own behalf, and 'Publication delayed by failure to receive copy. advantage of his opportunity. He was exposed to the temptation of fabricating a story, if he needed the aid of invention; and the exposure was under circumstances calculated to excite suspicion that his statement was, or might have been, referable to deliberation and after-thought, rather than to spontaneous or instinctive utterance. This does not imply that he did fabricate, for he might not have done so. Truth may have been with him, and invention unnecessary But, as his declarations did not accompany the act, they had to be so nearly connected therewith in time as to be free from all suspicion of device or after-thought. Hall v. State, 48 Ga. 607. If subject to suspicion at all, they were not admissible, although, in the particular case, the suspicion might be erroneous. In Factory v. Barnes, 72 Ga. 218, the injured person was a child 14 years old, and she died from the injury. Her declarations, made half an hour after the injury was received, were admitted in evidence upon the ground that they were free from suspicion; this court saying: "It is scarcely credible that this little girl, while enduring such excruciating pain-perhaps torture would not be too strong a word to characterize it-from this frightful wound, would have been capable of framing a story with a view to her ultimate advantage of gain, or for any other ulterior purpose." In considering that case afterwards, in Railroad Co. v. Randall, 79 Ga. 311,4 S. E. Rep. 674, in which latter case the declarations of a mature woman, not more remote in time, were held inadmissible, the court said: "That case must rest alone upon its own peculiar facts, and will the present case with peculiar force; for here the conversation was conducted on one side by words, and on the other chiefly by signs alone. not be extended beyond them. The proximity of time in which declarations are made to the main transaction is not the only test of their admissibility in evidence, but they must also be free from all suspicion of device or after-thought." It is obvious that, upon this requisite of freedom from suspicion, the age and discretion of the speaker must be of very considerable importance. We think the doctrine recognized generally by courts, others as well as our own, would require the exclusion of the evidence in this case. A somewhat thor-directed or authorized the use of any imough discussion of the subject will be found in the opinion by EARL, J., in Waldele v. Railroad Co., 95 N. Y. 274, the facts of which case were quite as favorable for the admission of the evidence as are those of the present case, and it was ruled inadmissible. See Estell v. State, (N. J.) 17 Atl. Rep. 118; Railroad v. Becker, (III.) 21 N. E. Rep. 524. An excellent chapter on the topic will be found in Wood Pr. Ev. 413-480; and see Mechem, Ag. § 715. Inasmuch as the evidence of the plaintiff and that of the conductor differed to the degree of direct antagonism upon the principal facts in issue, any illegal evidence may have turned the scale; and the declarations of the plaintiff being, as we have seen, inadmissible, we think a new trial should be had. For this reason the judgment denying a new trial is reversed. 3. Hitt talked very improperly, and with an evident purpose to corrupt his host, Mr. Branch, as a witness. Collins was with him to hear what was said; and both, it seems, were sent by Bush, Esq., one of the company's counsel, to get up evidence to be used in the case. It does not appear in express terms that the company or that Bush proper means in the business of getting up evidence, but there can be no doubt that to obtain evidence and prepare for trial is within the scope of the powers of an attorney employed in the defense of a pending case. If Bush himself had used the means to suborn evidence which Hitt used, the fact of his so doing would, it seems to us, have been admissible in evidence; and, if so, we see not why Hitt's conduct under Bush should not be admissible. The court charged fully and fairly as to the presumption that the company was free from complicity in the unlawful and improper conduct, but left the question to the jury as to how the matter really was, both in respect to the agency of Hitt, and his authority from the company to conduct himself towards the witness as he did. There was no proof from Bush or any other witness that Hitt had transcended his authority; and this, together with all the facts and circumstances, could be considered by the jury. The evidence warranted the reference of the whole matter to the jury for their appraisement of its import and value as a factor in the general case. 2. The witness Branch, on cross-examination, was interrogated as to conversation in the presence of Collins, and as to conversation addressed to Collins. This was with a view to laying the foundation for impeaching him by the testimony of Collins. His answers, without the explanation which he was allowed to superadd, would not show that he might have been 4. The point made that punitive dammisunderstood by Collins as to the former ages could not be recovered, because they conversation. With the explanation, the were not claimed eo nomine, is wholly withanswers show plainly that Hitt did the out merit. The declaration lays damages talking, or the most of it, and that Branch at $10,000, and alleges a tort, with circumresponded by nodding his head several stances that may well be considered as an times, without expressing himself in words. aggravation. The Code (section 3066) deWhat Hitt said was pertinent to the subject-clares: "In every tort there may be aggramatter to which the cross-examination re-vating circumstances, either in the act or lated; and the nodding of the head by the the intention; and in that event the jury witness was perhaps ambiguous, meaning either that he understood what Hitt said, or that he assented to some of it as representing the truth of the case. The latter construction might have been put upon it by Collins, and the jury would not have known whether this was correct or not, had not all the facts and circumstances of the conversation been brought to light as the witness detailed them. Indeed, without some of the explanation, they would not have even known that Branch expressed himself in this way at all. Whether Hitt was an agent of the company to talk as he did, is quite beside the question: for the company sought to affect the witness by the part he (the witness) took, or was supposed to have taken, in that conversation, no matter who or what the other interlocutor was. He had a right to show what the part attributable to himself really was; and in order to do so, under the peculiar circumstances, it was necessary to detail all, or much, of what Hitt said. The gen-instance of the other party. eral rule as to bringing, out the whole of the pertinent matter of a conversation, where a part of it is touched upon, is applicable to may give additional damages, either to deter the wrong-doer from repeating the trespass, or as compensation for the wounded feelings of the plaintiff." It certainly cannot be necessary for the plaintiff to set out in his declaration, in so many words, that he claims some or all of his damages as punitive. All he has to do is to make a case by his pleading and evidence which will entitle him to such damages, in addition to those actually sustained. We find no error in the record, save as indicated in the first division of this opinion. Judgment reversed. SMITH V. LEE et al. (Supreme Court of Georgia. March 23, 1889.)1 NEW TRIAL. The plaintiffs having recovered apparently less, instead of more, than the evidence warranted, there was no cause for granting a new trial at the (Syllabus by the Court.) 'Publication delayed by failure to receive copy. |