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curred, so that it would be chargeable | and onto the steps thereof; and in stepwith notice thereof? If the company knew or could have known of this washout, by the exercise of ordinary and reasonable care and diligence, it would seem from the authorities that it would be liable to the plaintiff for the damage he sustained. But if it did not know of it, and if there was no negligence on the part of the company's servants in not knowing or trying to know, the company would not be liable. It seems to us the pressure of the whole case is upon this point, and in the charge of the court, as contained in the record, we do not think that this point was prominently brought to the attention of the jury. This is a matter for the jury to pass upon on another trial of the case. The judgment is reversed because the court below erred in not granting a new trial.

WOOD et al. v. GEORGIA RAILROAD & BANK-
ING CO.

(Supreme Court of Georgia. Feb. 10, 1890.) RAILROAD COMPANIES-STOPPING TRAIN IN DANGEROUS PLACE.

It is a question for the jury whether or not it is negligence to lock the door of the privy on a railroad car, leaving no person in attendance to unlock it, and stopping the car over a cut 20 feet in depth without giving notice to the passengers of the danger to which they would be exposed if they attempted to leave the car.

ping down, as he believed, upon the ground, he fell through said trestle to the ground below, and was killed, without any fault or negligence on his part. That the privy or closet on the car was locked, and no one of defendant's employes was present to unlock the same; and there was no other place provided for the use of passengers who wished to attend to calls of nature. Defendant knew that said cut was a dangerous place. It was in the night-time, and Wood could not and did not see or know that the car was immediately over said cut, but believed he was alighting upon the ground. Defendant had been in the habit of stopping at said place, and taking on passengers there. The defendant demurred to this declaration upon the ground that it set out no cause of action. The court sustained the demurrer, and dismissed the case, and plaintiff excepted.

Under the facts alleged in this declaration, we think the court erred in sustaining the demurrer to the same, and dismissing the case. We cannot say, as a matter of law, that the facts alleged in the declaration do not constitute negligence on the part of the defendant. We think the court should have submitted the facts to the jury, and allowed them to determine whether it was negligence on the part of the defendant in locking the privy

Error from superior court, Bibb county; door, and having no place prepared for GUSTIN, Judge.

Dessau & Bartlett, for plaintiffs in error. J. B. Cumming, J. C. C. Black, and Hardeman, Davis & Nottingham, for defendants in error.

SIMMONS, J. The minor children of Jackson Wood, by their next friend, brought their action against the railroad company, and alleged in substance as follows: That on the 10th day of December, 1886, Jackson Wood was a passenger on the train of defendant bound from Macon to James station. That defendant's train left the depot at Macon on the night of said day, and proceeded on its usual course until it arrived at the bridge which crosses Ocmulgee river in said city, and then stopped, for the purpose of attaching thereto some freight-cars which were in the railroad yard about a quarter of a mile away; and, having stopped, the engine was detached from the train, and went back to secure said freight-cars. The passenger car in which said Jackson Wood was sitting was stopped immediately over and above a deep cut; said cut being about 20 feet in depth. That the trestle which supported the railroad bed at that point was not supplied with any guards or railing. No warning of any sort was given to Wood of the dangerous place at which the passenger car was stopped. The door of the car was not locked, nor was any guard stationed at the door of the platform to warn passengers of the danger to which they would be exposed in attempting to leave the car. That, after the car had been standing at this place some time, Wood had occasion to leave the car, to attend to a sudden and urgent call of nature, and walked out upon the platform,

its passengers to attend to calls of nature; in sending all of its servants and agents away from the car, so that the water-closet or privy could not be unlocked; and in stopping the car over a cut 20 feet in depth without giving notice to the passengers of the danger to which they would be exposed if they attempted to leave the car. If these facts are established on the trial of the case, we are inclined to think that the jury could infer negligence therefrom, and that the defendant would be liable. Judgment reversed.

CLAY V. CENTRAL RAILROAD & BANKING CO.
OF GEORGIA.

CENTRAL RAILROAD & BANKING CO. OF
GEORGIA v. CLAY.

(Supreme Court of Georgia. Feb. 10, 1890.) CONSTITUTIONAL LAW-CIVIL ACTION FOR HOMICIDE-CONSTRUCTION OF STATUTE.

1. The act entitled "An act to amend section 2971 of the Code of 1882, (being a codification of Acts of 1850 and 1855,) as amended by the act approved December 16th, 1878, " is not invalid as containing more than one subject-matter; the section of the Code giving a right to widows and children to recover for the homicide of the husband or parent, to the full value of the life of the deceased, and the amendment extending that right to the husband, mother, and father for the homicide of wife or child, and defining the term "full value of the life of the deceased. "

2. Nor is it unconstitutional in defining the expression, "full value of the life of the deceased, " as prescribing a rule of construction, and thus usurping by the legislature a judicial function, since it merely prescribes a rule for the measure of damages.

3. Nor is it unconstitutional as a special act, because the general law before its passage was that only the value of the life of the deceased person, after deducting such expenses as he would

have incurred had he lived, could be recovered, and this act provides that such expenses should not be deducted.

4. Under the amendment of October 27, 1887, to Code Ga. 1882, § 2971, relating to the recovery of damages for homicide, extending the right to recovery to a mother or father for the homicide of a child on whom she or he is dependent, or who contributes to his or her support, the child leaving neither wife, husband, nor child, a mother cannot recover for the homicide of a child who contributed to her support, without showing that she is dependent on him.

Error from superior court, Houston county; GUSTIN, Judge.

Action by Jane Clay against the Central Railroad & Banking Company of Georgia to recover damages for the homicide of ber son. The court granted a new trial to defendant upon some of the grounds alleged as error. The plaintiff brings error from the order granting a new trial, and the defendant filed a cross-bill of exceptions, alleging error from the refusal of granting a new trial upon all the grounds stated in its motion.

Willis & Battle and Duncan & Miller, for plaintiff in error. R. F. Lyon, for defendant in error.

BLANDFORD, J. The plaintiff brought her action against the defendant company to recover damages for the homicide of her son, who was a minor, alleging that he was killed by the carelessness and negligence of the agents and servants of the railroad company; that he was 20 years of age, unmarried, and left no wife or child; and that he contributed largely to the support and maintenance of the plaintiff. A verdict was rendered in favor of the plaintiff, and the railroad company moved for a new trial upon several grounds. The court granted the same upon the fifth and seventh grounds of the motion, and refused to grant it upon the other grounds contained therein. The fifth and seventh grounds are, substantially, that the verdict is contrary to the evidence, and without evidence to support it. The plaintiff thereupon filed her bill of exceptions, al- | leging that the court erred in granting a new trial upon the grounds mentioned; whereupon the defendant filed a cross-bill of exceptions, alleging as error the refusal of the court to grant a new trial upon the other grounds stated in said motion.

1. Whether the court was right in granting a new trial depends upon the law as applicable to this case. The legislature of Georgia passed an act, which was approved on October 27, 1887, entitled "An act to amend section 2971 of the Code of 1882, as amended by the act approved December 16th, 1878," etc. The section of the Code to be amended prescribes that a widow, or, if no widow, a child or children, may recover for the homicide of the husband or parent; that the plaintiff, whether widow or child or children, may recover the full value of the life of the deceased as shown by the evidence; and, further, that if a suit be brought by the widow or children, and the former or one of the latter dies pending the action, the same shall survive in the first case to the children, and in the latter case to the surviving child or children. The amendment of October 27, 1887, pre

scribes for inserting after the words, “surviving child or children," the following: "The husband may recover for the homicide of his wife, and, if she leave child or children surviving, said husband and children shall sue jointly, and not separately, with the right to recover the full value of the life of the deceased, as shown by the evidence, and with the right of survivorship as to said suit, if either die pending the action. A mother, or, if no mother, a father, may recover for the homicide of a child, minor or sui juris, upon whom she or he is dependent, or who contributes to his or her support, unless said child leave a wife, busband, or child." And it is further prescribed in said amendment that the "full value of the life of the deceased, as shown by the evidence, as used in this section, shall be held to mean the full value of the life of the deceased, as shown by the evidence, without any deduction for necessary or other personal expenses of the deceased had he lived."

The first thing to be considered is, what is the meaning of the words, “A mother, or, if no mother, a father, may recover for the homicide of a child, minor or sui juris, upon whom she or he is dependent," or "who contributes to his or her support?" We are of the opinion that the legislature did not intend to give to a mother or father, under the circumstances stated, the right to recover for the homicide of a child, unless the mother or father was dependent upon such child for a support, and such deceased child contributed to the support or maintenance of the mother or father. We are of the opinion that the word "or,' as used in this clause of the act, providing that the mother, or, if no mother, the father, may recover for the homicide of a child, minor or sui juris, upon whom she or he is dependent, "or" who contributes to his or her own support, (and which oc curs before the words," who contributes to his or her support, ") means, and should be read, "and" who contributes to his or her support. So, according to the meaning which we give to this clause of the act, it would read thus: "A mother, or, if no mother, a father, may recover for the homicide of a child, minor or sui juris, upon whom she or he is dependent, and iastead of "or"] who contributes to his or her support." We think it was clearly the intention of the legislature, in framing this act, to confer upon the mother or father the right to sue for the homicide of a child only in case that such parent was dependent upon such deceased child for a support and such deceased child, before his death, contributed to the support or maintenance of such parent. The use of the words “dependent" and "support" inclines us to the belief that the legislature never intended to confer upon a parent who was not dependent for support upon such de ceased child any such right of action. then, in order to carry out what, in our opinion, was the manifest intention of the legislature, we read the little word “or” as "and;" by which means we think we have correctly construed the true intent of the legislature in the passage of this law It is laid down as a rule of law that, in or der to carry out the intention of the legis

So,

ducted therefrom. Counsel insists that the act is unconstitutional because the general

lature, it is sometimes found necessary to read the conjunctions "or" and "and" one for the other. They may be used inter-law, before the passage of this act, was changeably, where it may be necessary to carry out the intention of the legislature. See the following cases: State v. Brandt, 41 Iowa, 593; State v. Myers, 10 Iowa, 448; People v. Sweetser, 1 Dak. 308; Fowler v. Padget, 7 Term R. 509; kex v Mortlake, 6 East, 397; Rolland v. Com., 82 Pa. St. 306, 326; Vance v. Gray, 9 Bush, 656; Com. v. Harris, 13 Allen, 534, etc. See, also, End. Interp. St. §§ 303-305, and cases cited. It is not even alleged in the declaration of the plaintiff in the court below that she was dependent upon the deceased child, and it is far from certain, under the evidence submitted, that the deceased contributed to the support of his mother; so we think the court did right to grant the motion for a new trial upon the two grounds mentioned.

2. We do not think it is necessary to notice any of the grounds taken in the cross-bill of exceptions, as they appear to have been abandoned by the able counsel who argued it, with the exception of one wherein counsel contended that the act of the legislature conferring this right of action, before stated, was unconstitutional and void. We think the act is not unconstitutional, or obnoxious to the constitution, upon the grounds stated by counsel, or upon any other grounds which might be taken thereto. The first ground urged by counsel is that the act is unconstitutional because it contains more than one subject-matter. The subject-matter of the act was to amend a certain section of the Code supra, and the amendment was germane to the provisions of that section, and was upon the same subject. The subject-matter, therefore, was to amend the section; and, while there might have been different objects and purposes in the amended act from those contained in the original, yet the amendment was germane thereto. It was all upon the subject of giving a right to recover damages for homicide; so we do not think that the act is obnoxious to that provision of the constitution which requires the body of the act to conform to its title, and that the same shall not contain more than one subject matter.

It is further insisted by counsel that the act is unconstitutional because it prescribes a rule of construction, and that the legislature had no power to prescribe the rule of construction of a law; that this is a duty of the judicial department of the government and therefore it is a violation of the constitution, which declares that the three departments of the government shall be kept separate and distinct We do not concur in this view taken by the able counsel for the plaintiff in error. We think the act merely prescribes a different rule for the measure of damages, and we know of nothing in our constitution which prohibits the legislature from prescribing a rule for the measure of damages.

Another ground taken, alleging its unconstitutionality, is that the amended act prescribes the measure of damages to be the full value of the life of the deceased person, and that whatever might be the necessary or personal expenses of the person so killed, had he lived, should not be de

that only the value of the life of the deceased person, after deducting such expenses as the deceased would have incurred had he lived, could be recovered. We do not clearly apprehend what is the true meaning of this ground of objection. The act which was amended was a general law of the state, and the amendment seems to us to be as general as was the original act itself. How it can be said to be a special act we cannot understand. So we think, upon the whole, the act is constitutional; and we do not think, therefore, that there is anything in the cross-bill of exceptions, and the judgment of the court upon both bills is affirmed.

WATERTOWN STEAM-ENGINE Co. v. PALM-
ER BROS.

(Supreme Court of Georgia. Feb. 10, 1890.)
PRINCIPAL AND AGENT-CREDITORS OF AGENT.

1. Bail trover having been brought by an agent in his own name for a horse that he had received in exchange for other property of his principal, the money paid, after judgment by the surety on the bail-bond, is the property of the principal, as against judgment creditors of the agent.

2. The principal is not estopped to claim the fund by having permitted the agent to sue in his own name and having assisted in the litigation, the indebtedness of the agent having been incurred before the trover suit was brought.

Error from city court of Macon; HARRIS, Judge.

Garnishment by Palmer Bros. against J. C. Pinkerton, judgment debtor, and Mansfield, garnishee. The Watertown Steam-Engine Company having dissolved the garnishment by filing bond, the garnishee paid into court the amount of his indebtedness, and the fund was claimed by the engine company, which brings error from a judgment in favor of Palmer Bros.

S. A. Reid, (by Harrison & Peeples,) for plaintiff in error. Turner & Willingham, for defendants in error.

SIMMONS, J. The record in this case shows the following to be, in substance, the facts of the case: J. C. Pinkerton represented the Watertown Steam-Engine Company as its southern agent, and made a settlement with one Tyson for an engine, taking two mules from him in part settlement of his note to the company. Pinkerton kept the mules at Davis' stables. One of them died, and the other was traded to one Pope for a sorrel horse. One Cook got possession of this horse in some way, and Pinkerton brought bail trover therefor. Mansfield stood Cook's security on the bail-bond. Pinkerton recovered the value of the horse. In the litigation about the horse the Watertown Company assisted, paying counsel his fees. The suit was brought in the name of Pinkerton. After judgment in the suit was obtained, Palmer Bros. sued out a summons of garnishment for Mansfield, the security on the bail-bond, they having previously obtained judgments against Pinkerton. The Watertown Company dissolved the garnishment. Mansfield answered that, when the Water

town Company dissolved the garnishment | himself for his agent." STEPHENS, J., in

by filing the bond, he paid over to the bailiff of the court $196; that being the amount for which he was liable as security on the condemnation bond in the bail trover case. The Watertown Company claimed as its property the fund thus paid in, as standing in place of the mule exchanged for a horse which belonged to it. Under the charge of the court, the jury found against the claimant, the Watertown Company, in favor of Palmer Bros. The claimant made a motion for a new trial upon the several grounds set out therein, which was overruled by the court, and it excepted.

1. Without discussing the many technical grounds set out in the motion, we will confine ourselves to the real merits of the case; and upon the merits we think the court erred in charging as set out in the tenth ground of the amended motion. The substance of that charge is that if the Watertown Steam-Engine Company had knowledge and notice of the pending suit, and aided Pinkerton by employing counsel, and set up no claim itself at the time, or did not require its agent to sue in his own name for its use, it is bound thereby; and, if before asserting its claim the money was garnished by a judgment creditor of Pinkerton, it would be in law the property of Pinkerton, and bound for the payment of the judgment creditor. In other words, if the Watertown Company aided Pinkerton in recovering this property, without disclosing that it was its property, it would be estopped from claiming the fund arising therefrom, as against the garnishing creditor. We do not agree with the court below in this view of the law. The evidence shows that Pinkerton was the agent of the Watertown Company, with full authority to collect debts, settle claims, and convert property into cash for the company, and that he did settle one of its claims, taking two mules in payment therefor, one of which was exchanged for a horse. Cook converted this property, and Pinkerton brought suit against him. Pinkerton was in possession of the property when it was unlawfully converted by Cook, and under the Code he had a right to bring this suit in trover, and to recover the property or its value. It is true he brought the suit in his own name, and was aided therein by the Watertown Company; but we do not see how this fact should estop the company, as between it and Palmer Bros. It appears from the record that Palmer Bros.' debt against Pinkerton was contracted before this suit by Pinkerton against Cook was instituted. The credit, therefore, was not given on the faith of this property; and, this being true, we cannot see how Palmer Bros. could be injured by allowing the real owner of the property to assert its claim thereto, although the agency of Pinkerton was unknown. In the case of Woodruff v. McGehee, 30 Ga. 158, it was held: "When an agent makes a contract for his principal, but conceals the fact that he is an agent, contracting as if he were principal, the principal may at any time appear in his true character, and claim all the benefits of the contract from the other contracting party, so far as he can do so without injury to that other by the substitution of

delivering the opinion, says: "The reason of the doctrine is that it is but just that every man should have what really, though secretly, belongs to him, so far as he can obtain it without injuring another by appearing in his true character of owner,' See, also, the case of Spain v. Beach, 52 Ga. 494, in which "A., the agent of B., having in hand certain money belonging to B., deposited it in bank to his own credit, he having already a credit there to himself, whereupon a creditor of A. garnished the bank. B. filed a claim affidavit and bond under the act of 1871, (Code, §§ 3541, 3543,) and his money was paid him on A.'s check. A. dissolved the garnishment in the usual mode, and got the balance on his own check. Held, that B. might assert his right to the money in this way." Palmer Bros. not being parties to the trover suit, and not having given credit to Pinkerton on the faith of this property, cannot be injured or damaged by allowing the Watertown Company, the true owner, to set up a claim to the property; nor, in our opinion, can they assert the doctrine of estoppel against the Watertown Company. If the Watertown Company were now suing Cook and Mansfield for this horse, under the facts disclosed by the record, we think the doctrine of estoppel could be asserted by Cook and Mansfield against it; but it does not apply, as between the Watertown Company and Palmer Bros. Nor was the fact that it assisted Pinkerton in the suit for the recovery of the horse such an admission by it of the title being in him as would estop them from setting up their own title against any persons not parties to that suit, nor prejudiced by the admission.

2. It was insisted by counsel for the defendant in error that, even if the Watertown Company was not estopped from setting up title, it would still not be entitled to the fund in court, because the fund was not paid in by Cook, against whom the trover suit was brought, but by Mansfield, as security on the bail-bond; and he refers to the case of Cairns v. Iverson, 3 Ga. 132, to sustain that position. The facts of that case are very different from the facts in this. In that case the creditor sued the administrator, and obtained a judgment quando. The heir at law sued the administrator, and had a judgment absolute. The administrator absconded, and his surety paid to the heir at law the amount of the judgment. A creditor filed his bill against the heir at law, and alleged that, inasmuch as creditors were entitled to the property before distributees, the heir should pay to him the amount received from the surety.

The court in that case held that the money paid by the surety was not money belonging to the estate, and therefore the creditor was not entitled to it. In this case, when Pinkerton sued Cook, he at the same time required him to give bail; and in pursuance of the statute Cook gave a forthcoming bond, with Mansfield as security, and agreed therein to answer such judgment, execution, or decree as might be rendered or issued in the case, and agreed to be bound for the payment of the eventual condemnation money. So that the money paid into court by Mansfield, the

security, was the fruit of Pinkerton's suit against Cook for the wrongful conversion of the horse. For these reasons we think the court below erred in refusing to grant a new trial in this case. Judgment reversed.

GEORGIA, S. & F. R. Co. v. HARVEY. SAME V. MATTHEWS. (Supreme Court of Georgia. Feb. 10, 1890.) EMINENT DOMAIN-LEGISLATIVE AUTHORITY.

An act of the legislature authorizing the city authorities to grant a railroad company an encroachment on a public street in front of two of its lots confers no authority to grant the right to close up an alley running between the lots, especially where the act provides for compensation for the damages by the use of the street, and makes no mention of damages from closing the alley.

Error from superior court, Bibb county; GUSTIN, Judge.

Injunctions by Harvey, Trustee, against the Georgia Southern & Florida Railroad Company, and by Matthews against the same company, to restrain the defendant from closing up a public alley. The defendant brings error from decrees for plaintiffs.

Guerry & Hall, for plaintiff in error. F. J. M. Daly, for defendant in error

SIMMONS, J. These two cases, involving the same principle, were argued together. The railroad company purchased lots Nos. 1 and 8 and 2 and 7 in block 57, in the city of Macon, for the purpose of erecting a freight and passenger depot thereon. Between these two lots is a public alley or street 20 feet wide, running from Fourth to Fifth street. The legislature passed an act, approved December 17, 1888, (Acts 1888, p. 140,) authorizing and empowering the mayor and council of Macon to grant to the railroad company a permanent encroachment 80 feet wide and 465 feet long on Fifth street; and the question in this case is whether that act authorized the mayor and council to grant to the railroad company the power and authority to vacate or close up this 20-foot alley one-half the length thereof, and Fifth street in front of the alley. The act of December 17, 1888, authorizes and empowers the mayor and council to grant to the railroad company "a permanent encroachment on and out of Fifth street, in the city of Macon, of 80 feet or less, adjoining lots numbers 1 and 8 in block 57, and extending from Plum to Pine street, in front of and adjoining lands now owned by said railroad company on said Fifth street, upon such terms and conditions as may be prescribed by the mayor and council of the city of Macon. Under this act, the railroad company contends that the mayor and council had the right and power to grant it an encroachment, not only in front of its property, but in front of the mouth of this alley, and that said mayor and council by their deed, in accordance with said act, did grant to it an encroachment, not only in front of and adjoining its property on Fifth street, but in front of the alley, and thereby authorized it to close up said alley. It was conceded in the argument

before us that, unless the act of the legislature authorized the mayor and council to allow the alley to be closed up, that they had no power or authority to contract with the railroad company to have said alley closed. So the question depends upon the construction to be given to that act.

Judge Dillon, in his work.on Municipal Corporations, (volume 2, § 657,) says: "Statutes legitimating acts and obstructions upon the highways which would otherwise be nuisances, are strictly construed, and must be closely pursued; and the authority given must be exercised with proper care. The act under consideration is one authorizing obstructions to be placed in a public street or highway, and under this authority it must be construed strictly. It will be observed that the act is entirely silent as to the encroachment in front of this alley. It is not alluded to in any part of the act, but the act simply gives the mayor and council authority to grant a permanent encroachment 80 feet wide adjoining lots Nos. 1 and 8 in block 57, and extending from Plum to Pine street, in front of and adjoining the lands now owned by said railroad company. It therefore restricts the power of the mayor and council to grant any encroachment except in front of and adjoining the property already owned by the railroad company. It does not authorize them to grant an encroachment in front of this public alley or street. If it had been the intention of the legislature to have granted this power, it would have been easy to have inserted it in the act. The legislature is presumed to have had knowledge of the locality of the streets and alleys which it was authorizing the mayor and council to sell or to give away. Certainly, the members of the legislature from that county had this knowledge. If it had been intended to grant the mayor and council power to vacate or close this alley, it certainly would have been expressed in the act. The omission of it in the act carries with it a strong conviction that this extraordinary power was not intended to be given. The act gives to the mayor and council the power to authorize the obstructing and closing up of one-half of Fifth street in front of and adjoining the property of the railroad. This, to say the least of it, was a generous grant on the part of the legislature to a private corporation; and doubtless the legislature would have hesitated before it included in the grant the power to close up entirely a public street which had existed since the town was laid out, in 1822, for the benefit of a private corporation, without the consent of the owners of property abutting thereon.

We are strengthened in this view by the proviso to the second section of the act That proviso declares that the railroad company shall pay to the owners of property along Fifth street any damages which their property may sustain by reason of the use and occupation of said street by said company. If it had been the intention of the legislature to grant the power to close up this alley, doubtless the same provision as to the payment of damages would have been incorporated in the act.

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