Zipperer v. Mayor of Savannah , 1907 Ga. LEXIS 48 ( 1907 )

Evans, J.

(After stating the facts.)

1. Before the plaintiff will be' entitled to recover of the city by virtue of the ordinance-declared-on as fixing a liability, she must bring herself plainly within its terms. In the attempt to do this it developed that Zipper,er, the deceased, was at the time of his death employed and paid’ by the Union Station Company; The trains of the Atlantic Coast Line'(formerly the Savannah, Florida & Western Bailway) and of the Seaboard Air-Line Bailway run into that station, and both of these roads have property there. In addition to the ordinance-set out in the foregoing statement of facts, the following ordinances' were introduced:. “To Form Part of Begular Police. The’additional policemen provided for in the foregoing section of this ordinance shall be taken and held as a part of the regular, police..force of-the City,of .Savannah, and the sergeants so appointed .shalj. have all the authority of other sergeants in the police .forpe,-.and .the -privates so appointed shall be held to be regular,.policempn of.-the City of Savannah, and liable to perform any and all of .the duties of sergeants and policemen, and subject to the same rul.es.-^nd, regulations as govern the city police in all particulars, and subject, to obey the commands of the officers of city police, as arp .the ¡present members of said city police.” “Police for Savannah; Florida and-Western Bailway; The Savannah, Florida and Western Bailway Company shall have the power to appoint fit and proper persons to be stationed at its wharves, depots, and yards,' who .shall- be approved by the mayor, shall take the same oath, give thp-,sapie bond, ,as required of the police, and shall be subject tq.pppform fhe duties-.prescribed by the said company, and shall ^G<jieiye-/fr|Om,.saj.d company such salary as it may deem proper, and saidi-.par.tie^-iso -appointed shall be subject to conform to all the'rules;.regulations, and ordinances governing the city police.” The plaintiff also introduced a bond headed, “Special Policemen Union Station,” which recited that “whereas the above, bonden E. O. Zipperer has been appointed by the mayor of said city a member óf the city police, with the understanding and on condition that said E. O. Zipperer will faithfully serve the said city as a policeman, for the space of at least twelve months,” etc., '‘now the condition of the above obligation is such that if the said E. O. Zipperer shall faithfully serve said city as a policeman for the said term of twelve months, unless sooner discharged by the mayor of said city, or unless rendered incompetent by sickness, and shall not at the end of said twelve months resign or vacate his said place as policeman without having given the mayor of said city at least thirty days notice of such resignation, then the above obligation to be void,” etc. The oath of Zipperer was also introduced, wherein he swears that “I will, during my continuance in office, to the best of my skill and ability, faithfully discharge all the duties which may be required of me; and I will in all cases conform to the ordinances of the city and its police regulations, and forthwith report all violations of the ordinances which come to my knowledge.” There was also testimony submitted tending to show that Zipperer was killed by a policeman of the city of Savannah, as the result of a dispute between them> and at the time of receiving the mortal wound Zipperer was in the uniform of a policeman, and on duty at the union station.

It will be noted that Zipperer was not employed by the city, and his duties were not defined by the city, other than those in the exercise of the functions of a policeman, in connection with the discharge of his duties to the Union Station Company by whom he was employed. The city neither paid nor obligated itself to pay for the services which he rendered. One employed by a private corporation to police its own property, who is paid by the employing company, and who is clothed with power to make arrests, and is subject to the control of the police department of the city government, is not a municipal officer, so as exempt his wages from process of garnishment. Tabb v. Mallette, 120 Ga. 97. There would seem to be an apparent conflict in the testimony as to the precise relation which Zipperer sustained to the city. In the bond and oath executed by him to the municipality he is described as a regular police officer, subject to the control of the municipal authorities. In the ordinance authorizing the Savnanah, Florida and Western Bailway Company to appoint fit and proper persons to be stationed at its depot, the person designated is recognized as an employee of the railroad company, but at the same time is required to take the oath and give the bond required of the city police, and to be subject to all the rules, regulations, and ordinances governing the city police. But whether or not the deceased sustained the relation of a policeman to the city for some purposes, it is certain that his dependent family, under the proof submitted, did not bring their case within the terms of the ordinance relied upon to establish the city’s liability. In the first place, the ordinance does not purport to allow any definite sum in the nature of a pension fund. The dependent family “shall receive his monthly salary for six months after his death.” Clearly the salary here referred to is that which the city would owe the policeman if he lived and performed his services. In effect it makes provision for the continuance of the salary for six months after the death of a policeman killed in the discharge of his duty. But Zipperer’s salary was paid by the Union Station Company, a private corporation, and he was employed by this company to perform duties primarily due to it. It is true that he was empowered by a municipal ordinance to exercise the functions, of a policeman in connection with the discharge of his duties to his employer, but the exercise of this official function was a mere incident of his employment. If he was not such a policeman as to be entitled, under the ordinance, to a continuance of his salary for six months, likewise he would not be entitled to a burial at the-city’s expense, as provided in the same ordinance.

2. Error is assigned upon the court’s refusal to permit the plaintiffs counsel to withdraw from the consideration of the jury the ordinance conferring on certain employees of the Savannah, Florida and Western Bailway Company the usual powers of police officers of the city of Savannah. This evidence tended to show that Zipperer was an employee of a private corporation, and not a policeman of the city of Savannah, and it was relevant as tending to establish this contention of the defendant. When a party voluntarily introduces competent and relevant testimony which is favorable to his adversary, he is not entitled, as a matter of right, to withdraw it from the record. 2 Elliott’s Gen. Prac. §593. A witness who-has delivered testimony hurtful to the party introducing him can not be withdrawn; but if the party has been entrapped by the witness, the law permits his impeachment by the party introducing him. Civil Code, §5290. The rule is different where the testimony is neither legal nor relevant. Where illegal or irrelevant testimony has crept into the record of the case, it is always in order to withdraw it. Salter v. Williams, 10 Ga. 187; Davenport v. Harris, 27 Ga. 68.

3. The court refused the request of plaintiff’s counsel to suspend the trial to enable the plaintiff to procure evidence in aid of her case. Tf a party is not ready for trial, and has sufficient cause for postponement to a later date, he should move for a continuance. After the trial is under headway the court is not bound to suspend it so as to give a party time to get more evidence to strengthen his ease.

4. The plaintiff failed to make out a prima facie case, and the court directed a verdict at the conclusion of her evidence. The proper practice in such a case is to enter a judgment of nonsuit. But as the plaintiff failed to prove her case, the judgment will not be reversed, but direction is given that if she so desires, the verdict be vacated, and a judgment of nonsuit be entered. Barnes v. Carter, 120 Ga. 895.

Judgment affirmed, with direction.

Fish, G. J., absent. The other Justices concur.