Avery v. Southern Ry. Co

• Decision Date: 17 October 1931
• Docket Number: No. 21234.,21234.
• Citation: 162 S.E. 648,44 Ga.App. 613
• Parties: AVERY. v. SOUTHERN RY. CO. et al.
• Court: Georgia Court of Appeals

44 Ga.App. 613

162 S.E. 648

AVERY.

v.SOUTHERN RY. CO. et al.

No. 21234.

Court of Appeals of Georgia,

Division No. 2.

Oct. 17, 1931.

Rehearing Denied Feb. 17, 1932.

Syllabus by the Court.

Where a woman 36 years of age entered the home of her married sister and her sister's husband, under a contract by the terms ofwhich she was to work for and help them as though she was one of the family, and they were to maintain and support her, and "adopt her as their adopted daughter, and make her one of the family and an heir to their estate, " and where the contract was performed on both sides so long as the married sister and her husband lived, the person who thus assumed by contract the relation of a child had no cause of action for the negligent homicide of her sister and brother-in-law, either under the Civil Code, § 4424 (as amended by Laws 1924, p. 60), providing for suit, in certain circumstances, by a child for the homicide of its parent, or upon the theory that she (the claimant) had sustained actual loss and damage in being deprived of the support which the decedents had furnished and were bound to furnish to her under the contract referred to. The petition failed to set forth a cause of action, and the court properly sustained the general demurrer.

Error from Superior Court, Polk County; Price Edwards, Judge.

Action by Mrs. Ocie Avery against the Southern Railway Company and another. Judgment was entered dismissing the petition, and plaintiff brings error.

Affirmed.

Mrs. Ocie Avery brought suit against Southern Railway Company and its engineer, A. M. Corrie, for the negligent homicide of Mr. and Mrs. Robert L. Johnson. The court sustained a general demurrer and dismissed the petition, and the plaintiff excepted.

The plaintiff alleged that the decedents contributed to her support, and that she was totally and wholly dependent upon them for such support, and that she was a member of their family "by reason of virtual adoption." The facts touching these relationships were more specifically stated as follows: The plaintiff was a widow 36 years of age, and was an invalid and without means of support. She was a sister of Mrs. Robert L. Johnson and a sister-in-law of Mr. Johnson. The plaintiff had no children; neither did Mr. and Mrs. Johnson. The plaintiff formerly lived in the home of Mr. and Mrs. J. D. Evans of Atlanta, when the decedents, Mr. and Mrs. Johnson, came to the home of the Evanses and stated to the plaintiff that, if she would go and live with them and work for and help them as though she was one of the family, "they would adopt her as their adopted daughter, and make her one of the family and an heir to their estate, and that she accepted said proposition to go with the said Mr. and Mrs. Robert L. Johnson to their home, work with and do for them the same as though she was their daughter, without any pay or other consideration, other than her actual food and clothing, on the consideration that she be by the said Mr. and Mrs. Robert L. Johnson individually and jointly adopted as their legal heir and daughter." "Prom said date henceforth she has remained with the said foster parents and performed all the duties required of her as an adopted daughter toward her foster parents, and * * * she was living with and performing said duties for them at the time they were killed by one of the trains of this defendant." The plaintiff "is totally and wholly without means, and was totally and wholly dependent on said foster parents for support; * * * they contributed to her and supported her as alleged in her original petition, and * * * by reason of her virtual adoption, there being no legal papers taken out, she is entitled to prosecute this suit and recover. * * * By reason of said virtual adoption and agreements, the conditions of which have been fully performed, your petitioner was and became, and is the true and lawful adopted daughter and heir of the said Mr. and Mrs. Robert L. Johnson."

Ben C. Williford and Horace & Frank HoT-den, all of Atlanta, for plaintiff in error.

Maddox, Matthews & Owens, of Rome, and W. H. Trawick and C. C. Bunn, both of Cedar-town, for defendants in error.

BELL, J. (after stating the foregoing facts).

The court properly sustained the general demurrer and dismissed the petition.

The plaintiff has no cause of action under section 4424 of the Civil Code of 1910, as amended by the act of August 18, 1924 (Ga. L. 1924, p. 60). Whether the...