Cohen v. Sapp, 40772

• Decision Date: 09 September 1964
• Docket Number: No. 40772,No. 3,40772,3
• Citation: 110 Ga.App. 413,138 S.E.2d 749
• Parties: M. L. COHEN et al. v. Joyce SAPP, by Next Friend
• Court: Georgia Court of Appeals

Page 749

138 S.E.2d 749

110 Ga.App. 413

M. L. COHEN et al. v.Joyce SAPP, by Next Friend.

No. 40772.

Court of Appeals of Georgia, Division No. 3.

Sept. 9, 1964.

Rehearing Denied Oct. 6, 1964.

Syllabus by the Court

1.The right of action to recover damages for loss of services and medical expenses arising from tortious injury to a minor is in the father; and the mother is empowered under the provisions of Code§ 53-511 to bring such suit only in the event that the father has lost his parental power.

2.A request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence; it must not be argumentative or seek an expression of opinion on the part of the court; and it must not be so phrased as to have a tendency to confuse and mislead the jury or to becloud the issues in the case

3.The verdict was authorized by the evidence in the case of the minor plaintiff and the court did not err in denying the motions for new trial and for judgment notwithstanding the verdict.

Joyce Sapp, a minor, filed suit by her mother, as next friend, against Murray L. Cohen and the Life Insurance Company of Virginia to recover damages for personal injuries sustained when she was struck by an automobile operated by the defendant Cohen who was alleged to have been engaged in the business of his employer, the corporate defendant, at the time of the occurrence.The petition alleged that Cohen was negligent in that he operated his vehicle with improper brakes, drove at a speed greater than was reasonable and prudent, and failed to yield the right of way to a pedestrian in a crosswalk.

Mrs. Mildred Sapp, the plaintiff's mother, also filed suit against these defendants in her individual capacity and for the use and benefit of the United States of America to recover damages for loss of services of her daughter and for medical expenses resulting from the injuries sustained by her daughter.The petition alleged that certain of these expenses had been paid by the Federal Government, by reason of the fact that the father of the child was serving in the United States Navy.

The two cases were tried together by consent and a verdict was rendered in favor of the plaintiff in each suit.The defendants filed separate motions for new trial and separatemotions for judgment notwithstanding the verdict in each case which were denied.The exception is to the denial of these motions and to the antecedent order overruling the defendants' general demurrers to the petition of Mrs. Mildred Sapp.

Bouhan, Lawrence, Williams & Levy, Walter C. Hartridge, II, Savannah, for plaintiff in error.

Whlly & Wallace, John C. Wylly, Savannah, for defendants in error.

JORDAN, Judge.

1.Mrs. Mildred Sapp's right to bring her action to recover damages for the loss of her daughter's services and for medical expenses resulting from the child's injuries was predicated upon Code§ 53-511 which provides: 'If a tort shall be committed upon the person or reputation of the wife, the husband or wife may recover therefor; if the wife shall be living separate from the husband, she may sue for such torts and also torts to her children, and recover the same to her use.'

This Code section on its face only requires the wife to be living separate from the husband in order to give her the right of action in a case such as this.However, it is abundantly clear from decisions of this court and of the Supreme Court that the provisions of this code section must be construed in pari materia with Code§ 74-108, which provides, 'Until majority, the child shall remain under the control of the father, who is entitled to his services and the proceeds of his labor.'This parental power may be lost in one of four ways prescribed by Code§ 74-108, including the failure of the father to provide necessaries for his child, or his abandonment of his family.

Under Code§ 74-108, the right of action to recover damages for loss of services and medical expenses arising from tortious injury to a minor is in the father; and it is only in the event that the father has lost his parental power that 'the mother, living separately from the father, and having the entire custody of their minor child, is entitled to the services of the child, and the proceeds of his labor, and, in case of a tort to the child, may sue and recover the same to her use.'Coleman v. Dublin Coca-Cola Bottling Co., 47 Ga.App. 369, 370, 170 S.E. 549, 550;Savannah, Fla. & W. Ry. Co. v. Smith, 93 Ga. 742, 21 S.E. 157;Amos v. Atlanta Ry. Co., 104 Ga. 809, 31 S.E. 42;King v. Southern Ry. Co., 126 Ga. 794, 55 S.E. 965, 8 L.R.A.,N.S., 544.

While Mrs. Sapp's petition alleged that she had the custody, care and control of her minor daughter, no allegation or proof was made sufficient to show a severance of the parental power vested in the father.As a matter of fact the record shows positively that Mrs. Sapp and the daughter were dependent upon and being supported by the father at the time of the injury to the daughter.In legal contemplation, therefore, such custody, care and control was still in the father(a member of the United States Navy who was serving at sea aboard the U. S. Valley...