Central of Georgia Ry. Co. v. James

• Citation: 85 S.E. 920,143 Ga. 753
• Decision Date: 21 July 1915
• Docket Number: 472.
• Parties: CENTRAL OF GEORGIA RY. CO. v. JAMES.
• Court: Georgia Supreme Court

85 S.E. 920

143 Ga. 753

CENTRAL OF GEORGIA RY. CO. v. JAMES.

No. 472.

Supreme Court of Georgia

July 21, 1915

Syllabus by the Court.

Under the ruling of this court when the case was here on a former occasion, the question as to the ability of the child to render services of value was for decision by the jury. The trial judge properly excluded testimony stating the opinion of certain witnesses, to the effect that a child of similar age, and mental and physical development, to the plaintiff's child, was incapable of rendering services of value.

(a) The testimony referred to in the preceding note was introduced by the defendant without objection, and the opposing counsel proceeded to cross-examine the witnesses relatively to the matter, and did not move to exclude the evidence until after the conclusion of all the evidence. Held, that the exclusion of the evidence on the motion of the plaintiff's counsel at the close of the evidence furnished no cause for the grant of a new trial on account of the conduct of counsel for the plaintiff in cross-examining the witnesses and in failing to object to the admissibility of the evidence at the time it was offered.

(b) Nor did the ruling afford the defendant cause for new trial on the ground that it was delivered in indefinite language and was confusing as to what evidence was excluded.

Certain grounds of the motion for new trial complain of rulings admitting evidence over the objection of defendant's counsel. Another complained of a ruling in which the judge refused to exclude evidence on motion of counsel for defendant. In neither instance was it stated affirmatively that the ground of objection alleged in the motion for new trial was stated to the judge and urged against the admission of the evidence at the time of the ruling complained of. Owing to this omission, the assignments of error based upon such grounds of the motion for new trial present no question for decision. McFarland v. Darien & Western R. Co., 127 Ga. 97, 56 S.E. 74; Chambers v. State, 141 Ga 652, 81 S.E. 880; Dunn v. Evans, 139 Ga. 741, 78 S.E. 122.

If the child was capable of rendering services of value at the time of the homicide, the plaintiff could maintain an action for loss of its services during the remainder of its minority. James v. Central of Georgia Ry. Co., 138 Ga. 415, 75 S.E. 431, 41 L.R.A. (N. S.) 795, 29 Ann.Cas. 1913D, 468. Having the right to sue, the jury might also take into consideration the probable future increase of earning capacity of the child. Clark v. Tulare Lake Dredging Co., 14 Cal.App. 414, 112 P. 564; Betts Co. v Hancock, 139 Ga. 198-208, 77 S.E. 77. Therefore a mere comparison of the value of the services of the child, at the time of the homicide, with the cost of supporting it at that time, and striking a balance, would not be a test of the amount of the damages to the plaintiff.

(a) While instructing the jury in the first part of the charge as to the right of the plaintiff to maintain an action for the loss of services of the child, after instructing them in effect that unless the child, at the time of the homicide was capable of rendering services of value, the plaintiff could not recover for such services, it was not erroneous to charge, in connection therewith, that the jury need not consider whether, at the time of the homicide, the cost of supporting the child "was equal to or greater than the pecuniary value of the services rendered."

In the latter part of the charge, while giving rules for determining the amount of recovery in the event the jury should determine that the plaintiff was entitled to recover anything for the loss of the services of the child, the judge charged, among other things, that they should take into consideration "what would be the expense of the father for the maintenance, protection, and education of the child." Held, that this charge was beneficial to the defendant, and, when considered in connection with the entire charge and its context, afforded the defendant no cause for a new trial on the ground that it was confusing to the jury and contradictory to that part of the charge alluded to in the preceding note.

The request to charge, ...