Cent. Op Ga. Ry. Co v. Hen-son

• Decision Date: 12 December 1904
• Citation: 121 Ga. 462,49 S.E. 278
• Parties: CENTRAL OP GEORGIA RY. CO. v. HEN-SON.
• Court: Georgia Supreme Court

49 S.E. 278

121 Ga. 462

CENTRAL OP GEORGIA RY. CO.

v.HEN-SON.

Supreme Court of Georgia.

Dec. 12, 1904.

DEATH BY WRONGFUL ACT—PETITION—AMENDMENT—EVIDENCE.

1. A petition for damages, brought by a father, under Civ. Code 1895, § 3828, for the homicide of his minor daughter, which alleges that the petitioner "has been and is unable to earn a support for his family without the assistance of his said daughter, " may be amended by striking therefrom the words "his family, " and inserting in lieu thereof the word "himself."

2. The allegations of the petition as to the prospective earning 'capacity of the deceased were not subject to the special demurrer filed thereto.

3. In a suit for damages by a father for the homicide of his minor child, brought under Civ. Code 1895, § 3828, it is not necessary, in order for the plaintiff to recover, that he show by the evidence that he depended alone upon the deceased child for his entire support. It is sufficient if he establish partial dependence upon the child's labor, accompanied by substantial contribution therefrom to his maintenance.

4. The evidence was conflicting, but that for the plaintiff warranted a finding that the homicide on account of which the suit was brought was brought about by the negligence of the defendant's employes, and that the deceased was free from fault.

(Syllabus by the Court.)

Error from Superior Court, Floyd County; W. M. Henry, Judge.

Action by J. W. Henson against the Central of Georgia Railway Company. Judgment for plaintiff. Defendant brings error. Affirmed.

J. Branham, McHenry & Maddox, and F. W. Copeland, for plaintiff in error.

Dean & Dean, for defendant in error.

CANDLER, J. This was a suit for damages against a railroad company, brought by a father for the homicide of his minor daughter. The original petition alleged that the petitioner's wife died in the year 1901, and that since her death "petitioner and his family, consisting of [the deceased] and four small children, have lived together, each working for the support and maintenance of the family as they were able to do; they having no means of support except such as they derived from their labor. Petitioner, being in feeble health and disabled by an injury, has been and is unable to earn a support for his family without the assistance of his said daughter." By an amendment, which was allowed over the objection of the defendant, the words "his family, " in the sentence last quoted, were stricken, and the word "himself" substituted therefor. The defendant demurred generally and specially, but its demurrer was overruled. It also filed an answer, and the case was tried before a jury, which returned a verdict for the plaintiff for $2,500. The defendant brings the case to this court on exceptions to the overruling of its motion for a new trial and of its demurrer, and to the allowance of the amendment to the petition heretofore mentioned.

1, 2. The cause of action stated by the plaintiff in his original petition was the wrongful homicide of his daughter, It is true that the fact that the deceased assisted the petitioner in his efforts to support his family would not authorize a recovery by reason of the section of the Code under which this suit was brought, and to that extent the petition as originally filed was defective and subject to special demurrer. The disposition made of the earnings of the deceased, however, was not the cause of action. It was matter which should have been properly pleaded in the first instance, but the failure to so plead it did not render the petition fatally defective and not subject to amendment. In the case of City of Columbus v. Anglin, 120 Ga. 785, 48 S. E. 318, is to be found an exhaustive review of the law relating to amendment of pleadings in this state. The previous decisions of this court on the subject were either harmonized, or, so far as they were in conflict with the principles announced, overruled, and the rulings there made may be taken as the settled law of this state in regard to amendments. Tested by that decision, we do not hesitate to say that the judgment allowing the amendment to the petition in the present case was correct. The demurrer filed by the defendant raises, in part, the same question as the objection made to the allowance of the amendment, and to that...