Appeal from Common Pleas Circuit Court of Abbeville County; Purdy, Judge.

Action by J. P. Moragne against the Charleston & Western Carolina Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Wm. N. Graydon, for appellant. Wm. P. Greene, for respondent.

POPE, C. J. Plaintiff. T. P. Moragne, brought this action against the defendant railway company to recover damages for injury to a mule alleged to have been caused by a defective crossing on its road. Defendant denied its liability on the ground that the road was a private way, and not such a crossing as it was required by law to keep up. The facts are as follows: Some time after the road was built defendant established the crossing in question. The road leads from plaintiff's home across the railroad to the public road and certain farm lands, and is used by plaintiff's family, the family of the tenant of one Porter, and, according to the testimony of the plaintiff, "every one who had business in there, coming or going to my house," or going to Mr. Porter's place. The crossing had been bad for several years, but defendant, although frequently requested to do so, had neglected to fix it and refused to allow plaintiff to do so. On February 22, 1906, plaintiff was crossing with a load of fertilizer, and his mule's foot was caught between a projecting spike and the rail, thus throwing it forward and crippling it, according to his testimony, permanently. The case was heard at the March, 1907, term of court for Abbeville county, and resulted in the direction of a verdict by the presiding judge, Hon. R. O. Purdy, for the defendant; the ground being that it was a private crossIng. Plaintiff appeals.

The question of roads has more than once been discussed in this state, and the law on the subject is well settled. State v. Hardin, 11 S. C. 366; State v. Tyler, 54 S. C. 294, 32 S. E. 422; Kirby v. Railway, 63 S. C. 500, 41 S. E. 765. According to these decisions there are three kinds of roads, viz., highways, composing two classes, public roads, and private paths, or neighborhood roads, and private ways. The first two classes named are public in contradistinction from the last which is private. State v. Harden, supra. The three classes are very clearly distinguished in the case of Kirby v. Railway, supra ; the distinction between private paths or neighborhood roads and private ways, the two classes germane to this discussion, being that the former runs from one public road to another public road, or from a public road to some other public place, or from one public place to another, while the latter does not connect any public road or public places at all. Again, to nequire a right to the former, use for 20 years is all that is necessary, while in the latter case adverse use

must be shown. From the distinctions as made by the court, however, we do not think that only those are neighborhood roads which run from one public road to another public road, or from a public road to a public place, or from one public place to another. Conceivably a road might be an outlet of a community numbering hundreds of people, and yet connect only at one end with a public road or other public place. Will it be contended that such a road is less a public way than one that leads off to a church or mill? Certainly not. On the other hand, not every road connecting with a public road is a neighborhood road, as, for instance, roads leading up to residences, such as avenues and outlets to roads. These are clearly private. The distinction must rest on the facts of the various cases. The road now under consideration falls under the class last alluded to, being only a way up to plaintiff's house and for his convenience, and for the use of the tenant of Mr. Porter, and running across their property. The evidence most favorable to plaintiff was that it was an outlet for himself and tenants of Mr. Porter, and such people as desired to visit their homes. If this were all that was required to be shown in order to establish the fact of a public road, whenever occasion demanded it, any avenue or road leading up from the public road to a private house could easily be shown to be a neighborhood road. We think the circuit judge was correct in holding that the only inference from the testimony here produced was that the road was a private

way.

The appellant contends, however, that section 2183 of the Civil Code of 1902 gives him a right to recover, even though it be a private way. That section provides: "A railroad corporation whose road is crossed by a highway or other way on a level therewith shall, at its own expense, so guard or protect its rails by plank, timber, or otherwise, as to secure a safe and easy passage across its road; and if, in the opinion of the county board of commissioners, or if such highway or other way be within the corporate limits of any city, town or village, then the proper municipal authorities thereof, any subse quent alteration of the highway or other way, or any additional safeguards, are required at the crossing, they may order the corporation to establish the same." This contention, we think, cannot be sustained. Aside from any implication of the act, the only reasonable construction would be that it applied only to public roads. Carried to the conclusion contended for by the appellant, a railroad company would be required to provide for every crossing or path across its roadbed, whether public or private. Even at ways where the statutory signals are not required the company would have to provide for crossing. Such a construction cannot be legitimate. The railroad company is owner in

fee of its right of way, and its right to control it is analogous to the right of individuals to control individual property. As in the case of property owned by a person, so must the right of a railway give place to a public right when the welfare of the public demands it. When, however, private advantage is sought to be gained, there is no power of condemnation. One of the very foundation elements of all civilization is the right to hold property and exercise control over it. Even governments themselves cannot legitimately rob one person of his property and give it to another. Recognizing this principle, the framers of our Constitution provided therein that private property should not be taken for private use without the consent of the owner. Clearly, therefore, this being a private way, the use would be private. The Legislature, then, has no power to place the burden on railways of keeping up such crossings. Mays v. Seaboard Railway, 75 S. C. 455, 56 S. E. 30. But, aside from this consideration, the clear implication of the act is that it is to apply only to such roads as are under the authority of the county commissioners or under the control of the municipal authorities. Such roads alone would come under their observation. Not being responsible for private ways, it is hardly reasonable to suppose, even if the user thereof did not object, that the commissioners would interest themselves to the extent of examining private crossings. In the case now under consideration, it does not appear that the commissioners were even cognizant of the crossing. It was established merely as an accommodation, and was used with the road's consent. There was absolutely no evidence of adverse possession.

It is the judgment of this court that the judgment of the circuit court be affirmed.

COLUMBUS R. CO. v. WOOLFOLK. (Supreme Court of Georgia. July 11, 1907.) 1. ANIMALS-KILLING DOG-LIABILITY.

The owner of a dog may maintain an action against one who wantonly and maliciously kills or injures his dog.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 2, Animals, § 115; vol. 41, Railroads, § 1399.]

2. EVIDENCE-VALUE OF DOG.

"The value of a dog [so killed or injured] may be proved, as that of any other property, by evidence that he was of a particular breed and had certain qualities and by witnesses who knew the market value of such animal if any market value be shown."

[Ed. Note. For cases in point, see Cent. Dig. vol. 20, Evidence, § 293.]

3. MASTER AND SERVANT-TORTS OF SERVANT. A master is liable for the willful torts of his servant, committed in the course of the servant's employment, just as though the master had himself committed them.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, § 1230.] (Syllabus by the Court.)

Error from Superior Court, Muscogee County; W. A. Little, Judge.

Action by C. M. Woolfolk against the Columbus Railroad Company. Judgment for plaintiff. Defendant brings error. Affirmed.

Woolfolk brought suit to recover the value of a dog alleged to have been willfully and wantonly killed by the running of a street car on defendant's line of road. It is alleged that plaintiff's dog came on the track about 150 feet in front of said car, and in full view of the motorman in charge thereof, and that said motorman immediately, and "with intent to kill said dog, increased the speed of said car, and did willfully, wantonly, maliciously, and unlawfully run down said dog," and killed him. The defendant demurred to the petition generally as setting forth no cause of action against it, and because "said petition does not allege that said act of wantonness and malice was done under the command or with the consent of the defendant." It demurred specially to the paragraph which alleged the value of the dog to be $200. The court overruled both general and special demurrers, and the defendant excepted.

Garrard & Garrard and W. Cecil Neill, for plaintiff in error. Slade & Swift, for defendant in error.

BECK, J. (after stating the facts). 1. "By the common law a dog is property, for an injury to which an action will lie. Wright v. Ramscot, 1 Saund. 84; 2 Bl. Comm. 293." Uhlein v. Cromack, 109 Mass. 273; St. Louis Ry. Co. v. Stanfield, 63 Ark. 643, 40 S. W. 126, 37 L. R. A. 659; 2 Am. & Eng. Enc. Law (2d Ed.) 347; 4 Bl. Comm. 236. As was said by the court in the case of Graham v. Smith, 100 Ga. 434, 28 S. E. 225, 40 L. R. A. 503, 62 Am. St. Rep. 323 the property of the owner in a dog "seems to be better defined at common law than it is by the construction which this court has put upon our statutes." The decision in Jemison v. Railroad Co., 75 Ga. 444, 58 Am. Rep. 476 holding that a suit cannot be maintained against a railroad company for the "unintentional, though negligent," killing of a dog, was affirmed in the case of Strong v. Ga. Electric Co., 118 Ga. 515, 45 S. E. 366. In the latter case five justices held that inasmuch as the rule in the Jemison Case "has stood as good law since December 1, 1885, and the General Assembly has passed no act changing the same,

the rule should not now be changed by overruling that case." Fish, P. J., and Cobb, J., concurred in the opinion in the Strong Case solely on the ground that it was controlled by the Jemison Case. Cobb, J., in his concurring opinion, said: "The trend of modern decisions seems to be in favor of treating the dog as property to the same extent that other domestic animals are treated"—and cites as authority the very elaborate monograph note in 40 L. R. A. 503, to the case of Graham v. Smith, supra; also the note in

37 L. R. A. 659, to the case of St. Louis Ry. Co. v. Stanfield, 63 Ark. 643, 40 S. W. 126. In the Jemison Case, supra, while holding that an owner cannot recover for the "negligent" destruction of his dog, the court expressly ruled that such owner "may maintain an action of trespass vi et armis for the wanton and malicious. killing of his dog." Inasmuch as the killing of the plaintiff's dog in the present case is alleged to have been the result of the "willful, wanton, and malicious" conduct of the defendant company's employé, we might safely rest our affirmance of the judgment of the court below upon the authority of the Jemison Case.

But it is contended by counsel for the plaintiff in error that "the ruling of the court in that case (that an action would lie for the wanton and malicious killing of a dog) is purely obiter dicta," and that it is not consistent with the other laws of the state. It is true that the question of the liability of the defendant for the wanton and malicious killing of plaintiff's dog was not before the court in the Jemison Case; but we are unable to assent to the other proposition that such a rule is inconsistent with the other decisions of this court, or with any of the statutes of the state. The case, cited by plaintiff in error, of Moss v. Augusta, 93 Ga. 797, 20 S. E. 653, the same being an action against the city for the wanton killing of plaintiff's dog by an officer of the city, was decided upon the ground that "a city is not liable for the illegal and tortious acts of its police officers." And the case of Patton v. State, 93 Ga. 111, 19 S. E. 734, 24 L. R. A. 732, holding that the willful and malicious killing of a dog is not an indictable trespass under Pen. Code, § 729, was based upon the ground that "that section relates to the injury or destruction of inanimate property, and does not apply to injuring or killing animals of any kind." In the case of Wilcox v. State, 101 Ga. 563, 28 S. E. 981, 39 L. R. A. 709, it was expressly held that a dog is a "domestic animal." Under Civ. Code 1895, § 3822, the owner is made liable for certain acts of his dog, "thus recognizing that the dog has an owner, and consequently that the thing owned is property." People v. Maloney, 1 Parker, Cr. R. (N. Y.) 593. Under the Constitution of the state (Civ. Code 1895, § 5883) dogs are treated as property, and the General Assembly is authorized to impose a tax upon them; and Pen. Code 1895, § 164, makes the dog a subject of simple larceny, and an indictment for simple larceny, even of a thing specified by statute, must allege both the ownership of the property stolen and its value. Davis v. State, 40 Ga. 229; Thomas v. State, 96 Ga. 311, 22 S. E. 956. It must, therefore, be concluded that the criminal branch of the law recognizes the dog as private property, and also as a "thing of value."

In the Strong Case, supra, Cobb, J., in his concurring opinion, quotes the language of a decision rendered by the then presiding

judge of the Atlanta circuit, holding that a dog was property subject to levy and sale. That question, however, has never come before this court, and is no part of the opinion in the Strong Case; but the reasoning of the learned circuit judge there quoted is so cogent that we refer to it here as throwing a flood of light upon the question of the true status of the dog in this state. In the case of Graham v. Smith, supra, it was held that "the owner of a dog has such a property in it as will enable him to maintain an action of trover for its recovery in case of its wrongful conversion." In the well-considered opinion it is expressly declared that a dog is property. It should also be remembered that in a trover case the plaintiff has the option of taking a verdict for the property or a money verdict. It seems to us, therefore, that the principles enunciated in the Graham Case control the case at bar; for it would be a strange inconsistency in the law to permit the plaintiff in a trover case to take a money verdict for the value of a dog wrongfully converted, and yet deny him the right to recover the value of a dog wantonly and maliciously killed. True, it has been held in this state that "a dog is not property, except in a qualified sense." Jemison's Case, supra. But even under the common law, where it was likewise declared that the property in a dog was "base property," and where he was not the subject of larceny, such property was nevertheless held to be sufficient to maintain a civil action for its loss. It would appear, therefore, that the rule in the Jemison Case, which declares that the owner cannot recover for the "unintentional, though negligent, destruction" of his dog, is extremely technical, and has no sound basis to rest upon. And while this court has followed the ruling in the Jemison Case, so far as to hold that there can be no recovery for the "unintentional, though negligent," killing of a dog, we feel no desire to extend that rule. The Jemison Case expressly recognizes that the owner may maintain an action for the "wanton and malicious killing of his dog"; and, as the allegations of the plaintiff's petition bring this case squarely within the rule last announced, we hold that the petition was good as against a general demurrer.

2. The fifth paragraph of the petition alleges that "said dog was of the value of $200." Defendant demurred specially to this paragraph, on the ground that "the measure of damages would not be based upon the value of the dog, as a dog has no market value in contemplation of law." It is true that it was said in the Jemison Case that "dogs seem to have no market value, and the rule of damages in the case of live stock killed by the running of trains could not be applied to them. In case of their wanton and malicious killing or injury, a different rule for ascertaining damages obtains. The act is one which may be compensated by

general or exemplary damages." But this was merely obiter, and is not supported by the latest and best authorities. "Large amounts of money are now invested in dogs, and they are largely the subject of trade and traffic." Mullaly v. People, 86 N. Y. 365. "It is common knowledge that many dogs have an actual commercial and market value." Strong's Case, supra. The better rule, therefore, for ascertaining the measure of damages, seems to be: "The value of a dog may be proved, as that of any other property, by evidence that he was of a particular breed, and had certain qualities, and by witnesses who knew the market value of such animal, if any market value be shown.

* This was so at common law, yet it was held at common law that the absence of any value was the reason that prevented a prosecution for larceny of a dog." Note in 40 L. R. A. 518, and see numerous cases cited.

3. The principle announced in the third headnote has been frequently ruled by this court, and disposes of all the other assignments of error. Central Ry. Co. v. Brown, 113 Ga. 414, 38 S. E. 989, 84 Am. St. Rep. 250.

Judgment affirmed. All the Justices con

cur.

CENTRAL OF GEORGIA RY. CO. v.
HUNTER.

(Supreme Court of Georgia. July 10, 1907.) 1. PLEADING AMENDMENT-NEW CAUSE OF ACTION.

A petition in a suit against a railroad company alleged that the defendant was the owner of the building which it used for depot purposes, and thereby invited persons having business to transact with the defendant to visit the same, and that the plaintiff went to the building for the purpose of transacting business with the defendant, and while there was injured by a defect in the floor of the building, which the defendant had negligently allowed to exist. An amendment was allowed, which alleged that the defendant permitted the express company to carry on its business in the building, and that the post office of the town was also situated therein, and that one person occupied all of the positions of railroad agent. express agent, and postmaster, and that plaintiff visited the building to transact business with such person as agent of the express company. Held, that the amendment did not set forth a new cause of action.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 686, 687.]

2. RAILROADS-INJURIES TO PERSONS AT STA

TION.

The evidence authorized the verdict, and no sufficient reason has been shown for reversing the judgment.

[Ed. Note. For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 868-872.] (Syllabus by the Court.)

for plaintiff. Defendant brings error. Affirmed.

Mrs. Martha Hunter brought suit against the Central of Georgia Railway Company, alleging: That the defendant was a corporation operating a line of railroads in the county of Taylor and had damaged her in the sum of $10,000. The plaintiff visited the depot of the defendant at the station of Howard, in the county named, "for the purpose of transacting business with the defendant." While she was leaving the depot she stepped upon a plank in the floor of the depot, and the plank gave way, causing her to fall into the hole. The depot was a place designed for public use, and was used by the public. It was designed for the use of those who transacted business with the defendant, and was SO used. The plank on which she stepped was loose, and was so placed that any one stepping upon it would cause it to tilt and be precipitated into a hole thereunder. The insecure condition of the place was known to the defendant, or by the exercise of ordinary care could have been known. The negligence alleged is in allowing the depot to become insecure and unsafe in the manner above referred to, and in failing to repair the same after notice of the fact that the same was out of repair. The petition in detail alleged the character of the injuries sustained, which were serious and permanent. The plaintiff offered an amendment to the petition, alleging, in substance, that the express company was permitted by the defendant to carry on its business in the depot, that she went to the depot for the purpose of transacting business with the agent of the express company, who was also the agent of the defendant, and that the post office of the town was also situated in the depot building, and the agent of the defendant was also the postmaster. The purpose for which the plaintiff entered the depot is alleged to have been to pay the agent of the express company for a package which had been forwarded by him for her. The defendant objected to the amendment, upon the ground that it added a new and distinct cause of action, changing the legal status of the parties and the character and nature of the liability of the defendant, and that the averments of the amendment were in no way germane to the cause as laid in the original petition. The court allowed the amendment, and the defendant excepted pendente lite. The defendant filed an answer, in which it admitted that its depot, or a part thereof, was intended and designed for the use of those who had business to transact with it, but denied that it was designed for public use, or was used by the public, except in the manner above referred to. When the case came on for a trial, at the conclusion of the

Action by Martha Hunter against the Central of Georgia Railway Company. Judgment

motion for a nonsuit, which was overruled, and the defendant excepted pendente lite. The trial resulted in a verdict in favor of the