The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1880-10-06
LAURA A. Carson

APRIL TERM, 1880.
LAURA A. Carson,
THOMAS p IEATHERs
Error to the Circuit Court of Warren
County. Hon. Upton NJ. Young, Judge
ON an instruction given for defendant, a
verdict was returned in his favor upon
which judgment was entered in the co urt
below.
The opinion is given in full.
CHALNEBs, J.
"The plaintiff sued the defendant to re-
cover damages for breach Of duty on his
part a. q common carrier. At the conclu-
sion Of the testimony in the court below
the Judge instructed the jury that if they
believed all the evidence IN the case, they
should find for the defendant, and thereup-
on, the jury a. in duty bound, 50 returned
their verdict such an instruction is only
proper where all the facts in evidence
being taken ~ absolutely true, every just in
ference from them fails to maintain the Is
sue" Whaaeyv. Co0k, % Miss. SOL, SO
Sum v Licerp0ol ms Co., 81 Miss. 704 If
there Is any conflict IN the evidence, the
view which j. most favorable to the plaintiff
must be taken absolutely true. The ties
timony shows this state of facts: Mrs. Car
ed AT Eicksburg on the steamboat Natchez
for Palmyra Landing, upon the assurance
that she should be landed there. Being
without a male escort, she placed herself
under the care Of the clerk Of the boat.
She was landed at two o'clock in the morn !
iHg az Point Pleasant Landing, mile dis |
taut from Palmyra, and was forced to spend /
tHe night with her children, in open !
warehouse almost without tire, and to pro- /
cure transportation next morning to her I
orgper destination. The night was very /
dark aud bitterly cold. She was induced \
80 djsenbark at Point Pleasant by assur- |
:tuce- communicated to her by one Hickey |
and one Okeily that she had arrived at her
landing, and the boat pushed of before she
had time, after discovering her error, to re-
embark Hickey was a personal friend of
che officers Of the boat, travelling free, and,
an return for the favor, assisted the clerk
an various ways and especially in the mat
.,.r al esc6rtiug ladies on aud oil the boat.
lie waa supposed by Mrs Carson to be one
or lhe clerk OKeliy was 4 passenger,
and an acquaintance of Mrs Carson's, and
tine clerk. on retiring for the night, re-
,fuested him to see her safely on shore when
Ger landing was reached. Both Hickey
and O'keily supposed ehen they conducted
her ashore that she Was dlsembarklng at
PALMYRA and this mistake grew out OF the
fact that the boat bad run past that place
without stopping, and With the intention
ON the part Of her officers OF returning 10 IL
after making the landing at Point Pleasant.
N4niisstly, under these circumstances, the
complained of was Improperly
given to the jury. 1t was proved Lat the I
custom OF the boat was TO notify passengers :
of their arrival at their places Of destination,
4 custom that gould seem Indispensable at
might. aud Mrs. Carson had therefore right 3
80 expect such notifications. When she re !
ceived il from Hickey, who, with the knowl- c
edge and consent of the officers, assumed TO {
act for them in such matters, and from L
D'keliy, who, AT the special instance and c
req deSt Of the clerk, was representing him e
in - doing she bad right to act upon 1t. |
The defendant in error is bound not only Il
,y the acts OF his clerk, but by the acts of 5
IL ose TO whom, in this matter, the clerk had o
ieputed the performance Of the duties III
lru.trd to himself The case stands precise b
~ as if the clerk had IN person instructed c
and led Ms Carson of the boat. Woods II
Master and Servant, 30S; Shearman and
Redfed on Negligence, Z 40. r
1t will be understood that we have, tor q
the purpose of considering the instruction, e
stated the facts most strongly for the plain 8
lins 1t will be tor the jury to say what the o
Facts really were.
Refeysed and demanded. >
Birchett & Gilland. for plaintiff in error .
Pitman, Pittman 4 Smith, oSntta.
To be reported 81 Miss. go. I
THOMAS II. Cook :
The STATE.
Erro, to the Circuit Court of Warren +
county. Hon A. c. Mayors, Judge, presided I
by Interchange. a
p. II. Cook and T. H. Cook were jointly t,
indicted for manslaugiter The indictment u
vas marked filled" March II, 1873. +. Ill. sl
'ook only. was arrested and the minutes n
hoved an Indictment against him alone p
lie was acquitted and afterwards L. IL. >;
took was arrested when the case was en- d
cred on the docket against him, and hc was II
ried and convicted IL January, 1880. No C
entry of the return of the indictment into :
curt 10y the grand jury was made, except II
IA che case of the state V. p. IL. Cook" Ia 81
March 1873. n n
Defeudau, moved for new trial, and u
lso in arrest of Judgment; both were re- n,
used. As
GEORGE, c. ]. 81 81
HID NJ
l. The indictment was, by the clerk, :.
larked filed when presented by the grand ~
lry. By% 2795, Code 1871 an entry on the no
linutes was prohibited until the defendant m,
as arrested; and the court could cause the
ntry to be made at any time after the APP I'll
earance Of the defendant While the case fn
aus stood the Act of 1878, p. 1919, was 40
assed providing that the filing of the in az
ictment hy the clerk should "be evidence tic
f the proper and legal return into court mn,
such Indictment" 1t was therefore
holly unnecessary to have made any entry ne
its return on the minutes. III,
> The Act of 1873 was not confined to we
ldictments found after its passage. 1t was VIC
>mpetent for the legislature to make 1t ali
1phcable to pending eases. 4Bfrmed sh
II. F. Simr~ll and l.. W. Magruder, for of
lantih in error gu
L. c. CatchingS, Attorney General, contra. an a.!
[To be reported. 81 Miss, 654. w ",
dy
T. GoRDoS as
No. 34ol. ed
McFACurx FIX 10