Clay v. Central R.R. & Banking Co. of Georgia

• Decision Date: 10 February 1890
• Citation: 10 S.E. 967,84 Ga. 345
• Parties: CLAY v. CENTRAL RAILROAD & BANKING CO. OF GEORGIA. CENTRAL RAILROAD & BANKING CO. OF GEORGIA. v. CLAY.
• Court: Georgia Supreme Court

10 S.E. 967

84 Ga. 345

CLAY v. CENTRAL RAILROAD & BANKING CO. OF GEORGIA.

CENTRAL RAILROAD & BANKING CO. OF GEORGIA. v. CLAY.

Supreme Court of Georgia

February 10, 1890

Error from superior court, Houston county; GUSTIN, Judge.

Action by Jane Clay against the Central Railroad & Banking Company of Georgia to recover damages for the homicide of her son. The court granted a new trial to defendant upon some of the grounds alleged as error. The plaintiff brings error from the order granting a new trial, and the defendant filed a cross-bill of exceptions, alleging error from the refusal of granting a new trial upon all the grounds stated in its motion.

p>Page Willis & Battle and Duncan & Miller, for plaintiff in error.

R. F Lyon, for defendant in error.

BLANDFORD J.

The plaintiff brought her action against the defendant company to recover damages for the homicide of her son, who was a minor alleging that he was killed by the carelessness and negligence of the agents and servants of the railroad company; that he was 20 years of age, unmarried, and left no wife or child; and that he contributed largely to the support and maintenance of the plaintiff. A verdict was rendered in favor of the plaintiff, and the railroad company moved for a new trial upon several grounds. The court granted the same upon the fifth and seventh grounds of the motion, and refused to grant it upon the other grounds contained therein. The fifth and seventh grounds are, substantially, that the verdict is contrary to the evidence, and without evidence to support it. The plaintiff thereupon filed her bill of exceptions, alleging that the court erred in granting a new trial upon the grounds mentioned; whereupon the defendant filed a cross-bill of exceptions, alleging as error the refusal of the court to grant a new trial upon the other grounds stated in said motion.

1. Whether the court was right in granting a new trial depends upon the law as applicable to this case. The legislature of Georgia passed an act, which was approved on October 27,1887 entitled "An act to amend section 2971 of the Code of 1882, as amended by the act approved December 16th 1878," etc. The section of the Code to be amended prescribes that a widow, or, if no widow, a child or children, may recover for the homicide of the husband or parent; that the plaintiff, whether widow or child or children, may recover the full value of the life of the deceased as shown by the evidence; and, further, that if a suit be brought by the widow or children, and the former or one of the latter dies pending the action, the same shall survive in the first case to the children, and in the latter case to the surviving child or children. The amendment of October 27, 1887, prescribes for inserting after the words, "surviving child or children," the following: "The husband may recover for the homicide of his wife, and, if she leave child or children surviving, said husband and children shall sue jointly, and not separately, with the right to recover the full value of the life of the deceased, as shown by the evidence, and with the right of survivorship as to said suit, if either die pending the action. A mother, or, if no mother, a father, may recover for the homicide of a child, minor or sui juris, upon whom she or he is dependent, or who contributes to his or her support, unless said child leave a wife, husband, or child." And it is further prescribed in said amendment that the "full value of the life of the deceased, as shown by the evidence, as used in this section, shall be held to mean the full value of the life of the deceased, as shown by the evidence, without any deduction for necessary or other personal expenses of the deceased had he lived."

The first thing to be considered is, what is the meaning of the words, "A mother, or, if no mother, a father, may recover for the homicide of a child, minor or sui juris, upon whom she or he is dependent," or "who contributes to his or her support?" We are of the opinion that the legislature did not intend to give to a mother or father, under the circumstances stated, the right to recover for the homicide of a child, unless the mother or father was dependent upon such child for a support, and such deceased child contributed to the support of maintenance of the mother or father. We are of the opinion that the word "or" as used in this clause of the act, providing that the mother, or, if no mother, the father, may recover for the homicide of a child, minor or sui juris upon whom she or he is dependent, "or" who contributes to his or her own support, and which occurs before the words, "who contributes to his or her support,") means, and should be read, "and" who contributes to his or her support. So, according to the meaning which we give to this clause of the act, it would read thus: "A mother, or, if no mother, a father, may recover for the homicide of a child, minor or sui juris, upon...