Allen v. The Atlanta St. R.R. Co.

• Citation: 54 Ga. 503
• Parties: William B. Allen, plaintiff in error. v. The Atlanta Street Railroad Company, defendant in error.
• Decision Date: 31 July 1875
• Court: Supreme Court of Georgia

54 Ga. 503

William B. Allen, plaintiff in error. v. The Atlanta Street Railroad Company, defendant in error.

Supreme Court of the State of Georgia

January Term, 1875.

(Atlanta, July Term, 1875.)

Page 503 Parent and child. Torts. Damages. Before Judge Hopkins. Fulton Superior Court. April Term, 1875.

Reported in the decision.

S. B. Spencer; P. L. Mynatt, for plaintiff in error.

*Candler & Thomson; A. W. Hammond & Son, for defendant.

Warner, Chief Justice.

This was an action brought by the plaintiff against the defendant to recover damages for killing his male child of the age of two years. The plaintiff alleges in his declaration, that the defendant, by means of the carelessness and negligence of its agents, in the management of its street railway cars, ran against, struck down, ran over, and crushed the body of his said child, whilst in the act of crossing Marietta street, a public street in the city of Atlanta, without blame or fault on the part of said child, whereby the said child died thirteen days after the infliction of said injury by the defendant. The plaintiff also alleges that his child was sound and healthy, and that the services of his said child would have become, at an early day, of great value to him, to-wit: the sum of $3,000 for services to be rendered by his said child, until he had attained the age of twenty-one years, of which, the plaintiff alleges he has been deprived by the negligence and carelessness of the defendant. The defendant demurred to the plaintiff's declaration on the ground that no legal cause of action was alleged therein which would entitle the plaintiff to recover the damages which he claimed. The court sustained the demurrer and the plaintiff excepted.

1. In the case of the Georgia Railroad Company v. Wynn, 42 Georgia Reports, 331, it was held that the 2971st section of the Code, providing for the recovery of damages for physical injuries, limited the right of recovery to a widow, or if no widow, then to the child or children, for the homicide of the husband or parent. The damages claimed in this case, are not for the homicide of a husband or parent. The plaintiff, however, insists that he does not claim damages for the homicide of his child, but for the loss of the services which his child would have rendered him until twenty-one years of age, if hehad not been killed by the defendant, or its agents, as alleged *in his declaration. The 2960th" section of the Code declares that "every person may recover for torts committed to himself, or his wife, or his child, or his ward, or his servant." This section of the Code as to the relative rights of parent and child, master and servant, etc, should be construed in the light of the common law of force in this state, for it is not to be presumed that the legislature intended to alter or change the common law in relation to the relative rights of parent and child, master and servant, and the remedies provided for the maintenance and enforcement of the same, unless it has done so in express terms, or by necessary implication. There-fore, under this section of the Code, every person in this state may recover damages for torts committed to himself, or his...