Amos v. Atlanta Ry. Co

Decision Date19 July 1898
Citation31 S.E. 42,104 Ga. 809
PartiesAMOS . v. ATLANTA RY. CO.
CourtGeorgia Supreme Court

Injury to Minor—Action by Parent—Abandonment by Father—Rights of Mother.

1. A tortious act which deprives a minor of his ability to render valuable services will give the parent a right of action against the wrongdoer; although such tort may result in the death of the minor, and although at the time of the injury he may be serving, for a violation of a penal law, a term in the chain gang, which expires in a short time, and before his majority.

2. A mother has a right of action for such a tort when the father has abandoned his family and all custody and control of the minor. The allegation in this petition of such abandonment by the father is sufficient as against a general demurrer.

(Syllabus by the Court.)

Error from city court of Atlanta; H. M. Reid, Judge.

Action by Anna Amos against the Atlanta Railway Company. Judgment for defendant. Plaintiff brings error. Reversed.

Arnold & Arnold, for plaintiff in error.

L. A. Dean and King & Spalding, for defendant in error.

LEWIS, J. Anna Amos brought suit in the city court of Atlanta against the Atlanta Railway Company for a tort committed upon her minor son on October 18, 1895, alleging in her petition substantially as follows: At the time mentioned, the minor son was 13 years of age, and was engaged at work in the county chain gang, near the city limits, serving there a sentence of six months, which would have expired in 77 days from the date of the injury. The injury resulted in the immediate death of her son, and was caused by the negligence of the defendant company, and without fault on the part of the deceased. The boy's services at the time were of the value of $10 per mouth. "Plaintiff was his only parent (his father having deserted plaintiff long ago), and she received the same [his services], and the boy lived with her before his confinement, and his services were at said time of the value aforesaid; and plaintiff alleges that she was entitled to the same, subject, of course, to the right of the state to temporarily confine him as a convict." The petition sets forth the nature of the services the boy was capable of rendering, and which he did render to plaintiff prior to his incarceration, and further alleges that subsequent to the confinement he would have continued to render such services and contribute to her his earnings. The suit was brought for the lost services of the son to which the plaintiff would have been entitled up to the boy's majority had he not been killed. To this petition the defendant demurred, upon the grounds (1) that there is no cause of action set forth in plaintiff's petition against this defendant; (2) by the statements in plaintiff's petition it Is clearly shown that the son of plaintiff was not at the time of the alleged injury rendering or capable of rendering any service to plaintiff. This demurrer was sustained by the court and the plaintiff excepted.

1. The action in this case is founded upon the common-law right embodied in section 3816 of the Civil Code, which declares: "Every person may recover for torts com mitted to himself, or his wife, or his child, or his ward, or his servant." The prevailing rule in England is that if a tort upon a child results in its immediate death, there can be no right of action for lost services. This doctrine, as laid down in the case of Osborn v. Gillett, 8 L. R. Exch. 88, has not only been adhered to in England, but has been adopted by several of the courts in America. It is certainly an anomaly in law to hold that, because death results from an injury, the parent cannot recover damages for such a wrong, whereas, if death had not resulted, the right of action would lie. The rule denies any remedy where the injury is more aggravated, and the damages sustained greater. On account of its absurdity, this court, as well as some others in the United States, has entirely ignored it, and has held that, although death results from the tort, an action for lost services can be maintained by the parent. Shields v. Yonge, 15 Ga. 349; Chick v. Railroad Co., 57 Ga. 357; McDowell v. Railroad Co., 60 Ga. 320. Rut it is insisted by the defendant that, inasmuch as the injury to the child occurred at a time when its services could not be commanded by the parent, there can be no recovery, and the decision of this court in the case of Smith v. Hatcher, 29 S. E. 162, is relied on to sustain this position. In that case the suit was for the homicide of the child, based upon a new right given by statute to the parent which did not exist at common law. Under the statute (Civ. Code, 8 3828), the right is founded upon the dependency of the parent on the child at the time of the injury, and, further, upon the fact that the child was contributing to the support of the parent. The decision of the court is expressly founded on the use in the statute of the words "is" and "contributes, " in the present tense, the court simply ruling that, under the statute as construed, the parent must at the very time of the injury be dependent upon the child, and the child at such time must be actually contributing to the parent's support. See opinion of Presiding Justice Lumpkin in that case. The action in the case now under review, however, is not founded upon this...

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