Atlanta Consol. St. Ry. Co v. Arnold

• Decision Date: 12 March 1897
• Citation: 28 S.E. 224,100 Ga. 566
• Parties: ATLANTA CONSOL. ST. RY. CO. v. ARNOLD.
• Court: Georgia Supreme Court

28 S.E. 224

100 Ga. 566

ATLANTA CONSOL. ST. RY. CO.

v.ARNOLD.

Supreme Court of Georgia.

March 12, 1897.

Death of Infant Child —-Action for Damages.

This case, in principle, is controlled by the decision rendered by a majority of this court, as then constituted, in the case of Railway Co. v. Cevenia (last term) 29 S. E. ——, which decision is now adhered to as correct. It follows that the court erred in not sustaining the demurrer to the declaration, and, this being so, the trial and its result were nugatory and void.

Atkinson, J., dissenting.

(Syllabus by the Court.)

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

Action by Garnett Arnold against the Atlanta Consolidated Street-Railway Company. Judgment for plaintiff, and defendant brings error. Reversed.

N. J. & T. A. Hammond, for plaintiff in error.

Arnold & Arnold and B. H. & C. D. Hill, for defendant in error.

FISH, J. This case, in principle, Is controlled by the decision of the majority of this court, as then constituted, in the case of Railway Co. v. Covenia (decided at the last term) 29 S. E. —, which decision is now adhered to as correct. In that case, as in this, a father sought to recover damages for the death of his infant child, alleged to have been killed by reason of the negligence of a defendant corporation, and alleged that the child was able to and did render certain specified services, which were worth so much per month; the character of the alleged services being, in the two cases, much the same. In the Covenia Case the plaintiff's petition alleged that the child killed was 1 year, 8 months, and 10 days old. In the present case the allegation is that the child was between 2 1/2 and 3 years old. There was a demurrer in the first case upon the ground that the plaintiff, by the allegations in his petition, showed that the child "was of such tender years as to be unable to have any earning capacity, and hence the defendant could not be held liable in damages for the killing of said child, even if negligently done." The trial court overruled that demurrer, and this court held such ruling to be erroneous, and that "the courts will take judicial cognizance of the fact that an infant of [such] age is incapable of rendering valuable services." In the case which we have now under consideration, there was a demurrer to the plaintiff's petition, two grounds of which were (1) that the petition was "insufficient in law, for that it does not state any valid cause of action against the defendant;"...