Augusta Factory v. Davis

• Decision Date: 20 July 1891
• Parties: Augusta Factory v. Davis.
• Court: Georgia Supreme Court

13 S.E. 577

87 Ga. 648

Augusta Factory v. Davis.

Supreme Court of Georgia

July 20, 1891

Syllabus by the Court.

1. There is no duty upon the judge of the superior court, after overruling a demurrer to the declaration, to suspend or postpone a trial of the case by the jury on issues of fact. The defendant may either except pendente lite to the judgment overruling the demurrer, or wait until after the trial is concluded, and make that judgment a subject of exception in a regular bill of exceptions.

2. A father may recover damages against the wrong-doer for loss of labor and services of his minor child, and for burial and other expenses incurred on account of the negligent homicide of the child, such child being old enough to perform labor and having lived for several days after the infliction of the injury resulting in death.

3. It would seem that the damages recoverable for loss of labor and services might be computed for the whole remnant of minority though the mother of the child be living, and might, under the act of October 27, 1887, have a right of action for the homicide; the father's action not being brought for the homicide, but for the loss of labor and services, caused by the wrongful negligence of which death was one of the consequences.

Error from superior court, Richmond county; H. C. Roney, Judge.

Action by John H. Davis against the Augusta Factory for damages for the negligent killing of a daughter. Judgment for plaintiff. Defendant brings error. Affirmed.

Bleckley C.J.

After overruling the demurrer to the declaration, the judge, in the exercise of his discretion, and having doubts in his own mind of the correctness of his ruling on the demurrer, ordered the case to be withdrawn from the jury. This was done for the avowed purpose of giving the defendant an opportunity to bring the case to this court on writ of error in advance of a trial by jury on the issue of fact. Though it was in the power of the court to suspend the trial, there was no duty incumbent upon it to do so. The defendant might have entered exceptions pendente lite to the decision overruling the demurrer, (Bradley v. Saddler, 54 Ga. 681;) or without excepting pendente lite, the question on the demurrer alone could have been brought here by regular bill of exceptions, after the trial was over, and a recovery had by the plaintiff, (Lowe v. Burke, 79 Ga. 164, 3 S.E. 449, and see Kitchens v. State, 80 Ga. 810, 7 S.E. 209;) or after a mistrial, (Railroad Co. v. Denson, 83 Ga. 267, 9 S.E. 788;) but it was not necessary that the trial should proceed any further after the demurrer was overruled, in order to render the judgment on the demurrer reviewable here, (City Council v. Lombard, 86 Ga. 165, 12 S.E. 212.)

2. The plaintiff's daughter was 15 years of age, and was injured on the 8th day of January, 1890. She survived until the 24th day of the same month, when she died of her injuries. The action is for the loss of her labor and services, and for expenses incurred in her last illness, death, and burial. The negligence of the defendant which caused the injury and consequent death...