City Ice Delivery Co v. Turley

• Decision Date: 14 July 1931
• Docket Number: No. 20951.,20951.
• Citation: 44 Ga.App. 32,160 S.E. 517
• Parties: CITY ICE DELIVERY CO. v. TURLEY.
• Court: Georgia Court of Appeals

44 Ga.App. 32

160 S.E. 517

CITY ICE DELIVERY CO.

v.TURLEY.

No. 20951.

Court of Appeals of Georgia, Division No. 1.

July 14, 1931.

Rehearing Denied Sept. 17, 1931.

Syllabus by the Court.

The allegations of the petition on which it was sought to recover for the killing of a 4-year old child of the plaintiff by a truck of the defendant were sufficient to show actual and punitive damages, and the court did not err in overruling the demurrer.

Syllabus by the Court.

"A mother may recover for the tortious homicide of her child upon whom she is dependent either wholly or in part and who contributes substantially or materially to her support. In such a case the mother may recover the full value of the life of the deceased, as shown by the evidence * * * without deduction for necessary or other personal expenses of the deceased had he lived. * * * The contribution of the child as contemplated by the statute may be either in money or labor."

Syllabus by the Court.

There is no exception to the amount of the verdict, and the evidence, though conflicting, authorized the finding of the jury; no error requiring a new trial is shown; and the court did not err in overruling the. motion for a new trial.

Additional Syllabus by Editorial Staff.

Error from City Court of Decatur; Frank Guess, Judge.

Suit by Louise Turley against the City Ice Delivery Company. Judgment was entered for plaintiff, defendant's motion for new trial was overruled, and defendant brings error.

Affirmed.

Mrs. Louise Turley brought suit against the City Ice Delivery Company for the homicide of her child, caused by its being run over by a truck of the defendant company. She alleged that she was a widow and had exclusive control of the child, was entitled to the services of the child and worked every day to earn a livelihood; that the child was 4 years of age and well developed physically and mentally; that the child performed valuable service in assisting in the keeping of the home and the usual tasks in and about the home; that she went upon errands for petitioner and rendered such other services as children may render for a parent; that such services were necessary for the proper maintenance of the home, and that the plaintiff and her deceased child were mutually dependent upon each other for services which each rendered; that such services of the child were worth $5 per week, and "that as said child grew older said services and the earning capacity of said child would have increased until they would have reached a maximum of $25 per week or more prior to the said child's majority"; that at the time the truck of the defendant company hit the child it was loaded with 4, 500 pounds of ice, was running at a reckless rate of speed of 25 to 30 miles an hour, at a point where traffic is extremely heavy, where 20 to 30 people were standing on the sidewalk and in the street waiting for the street car, and that the driver of the truck failed to have it under control, and to blow any horn, or give any warning of his approach, and that such conduct on the part of the driver constituted gross negligence and wantonness, and was the direct and proximate cause of the homicide. Petitioner alleged that, in addition to actual damages for loss of services and for funeral expenses, she is entitled to punitive damages on account of the gross and criminal negligence of the defendant.

Defendant denied liability and alleged that the damage sustained was due to the negligence of the plaintiff and of the deceased child, and demurred to specified portions of the petition on the ground that they were conclusions of the pleader, unsupported by facts, and demurred to the paragraph seeking punitive damages, because no facts are alleged which would authorize such a recovery. The demurrer was overruled and the defendant excepted pendente lite, and upon such exceptions assigns error in its bill of exceptions.

The trial resulted in a verdict and judgment for the plaintiff in the sum of $8,000, a motion for a new trial was made and overruled, and on this ruling the defendant assigns error.

Brandon & Hynds and Frank C. Tindall, all of Atlanta, and B. Hugh Burgess, of Decatur, for plaintiff in error.

McClelland, Savage & Crawford, of Atlanta, for defendant in error.

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

1. The allegations of the petition were sufficient to show actual and punitive damages, and the court did not err in overruling the demurrer.

The mortality and annuity tables were introduced in evidence, and proper instructions in regard thereto were given by the court, to enable the jury to ascertain the expectancy and earning capacity of the child. The tender years of the child necessarily limited her contribution of services to her mother prior to the child's death, and there was evidence introduced by the defendant company tending to show that said defendant company was in no wise responsible for the death of the child. But there was also evidence that the child did contribute "substantially and materially" to the support of its mother, and evidence that the servant of the defendant company was negligent and that such negligence was the proximate cause of the death of the child. These are distinctly questions of fact for the jury, and, in view of the conflicting testimony, this court is powerless to disturb their findings as to these issues of fact. The mother testified that "in the way of assisting me about the house this child was capable of rendering service and did actually render service. * * * If I wanted anything from next door I could send Mildred [the deceased child] and she always went and did what I told her, and when I came in tired from work, if I wanted a broom from another room, Mildred was always ready to bring it in for me, and she would bring in kindling in the morning when I would be getting breakfast and getting ready to go to work. When I went to make up my bed she would lay one side of the cover over while I laid the other. She always put her pillow on as I put mine. That service was worth something to me. It saved me many steps. My work is the kind that tires me physically, and I was on my feet most all of the day, and she would do these things to help me in the evenings when I was tired, as well as in the mornings before I went to work. My best judgment as to what would be a reasonable value for the services of the child in helping me look after the home and in helping me * * * I would say $4 a week to me, what the child did. Except the two of us neither one of us had anybody to support us except each other, not at all. What I earned went into the support of the home, the maintenance, and what work she, the little girl, did, what service was rendered by her was done in the home for the same purpose. * * * She went to get anything for me, anything I wanted to borrow from next door. * * * She would run errands for me before I went to work in the mornings if I needed anything. * * * We got milk about three houses down the street and I sent Mildred down there for the milk. * * * If I wanted to order over the tele phone from the store, I would give Mildred a little note; and if it would not be but one or two things, I only told her, and she could tell exactly what mother wanted." The credibility of this testimony was entirely for the jury. In the light of this testimony and the authorities hereinafter cited, the jury had a right to determine the value of the child's services at the time of its death.

As to the negligence of the defendant, there was evidence that "the front fender struck the side of her face, crushing her cheek-bone; it knocked her little face onesided. * * * I did not hear any horn or any other kind of warning before the impact. * * * I could see the child in front of the truck. The position of the child when the truck came together, according to the way I saw it, was that the child was in front of the truck. * * * When I first put eyes on the truck was when the truck dashed right past me. * * * The truck dashed by me just like that. * * * I did not hear any horn or any other sound made by the truck before it got right where the crowd was standing. * * * That truck never slacked its speed or changed its speed any as it passed me. It went like that (indicating), because it scared me. * * * There was a good crowd, as there usually is a good crowd there. * * * The truck, from the time it passed me until he hit the little girl, didn't reduce his speed at all. * * * From the noise, it sounded to me, it increased its speed, * * * the truck was speeding along at an unusual speed. * * * I could tell from the sound of the motor that it did pick up speed. The part of the truck that hit the little girl * * *...