Coleman v. Dublin Coca-cola Bottling Co, s. 22879, 22880.

• Decision Date: 18 August 1933
• Docket Number: Nos. 22879, 22880.,s. 22879, 22880.
• Parties: COLEMAN. v. DUBLIN COCA-COLA BOTTLING CO. DUBLIN COCA-COLA BOTTLING CO. v. COLEMAN.
• Court: Georgia Court of Appeals

47 Ga.App. 369

170 S.E. 549

COLEMAN.

v.DUBLIN COCA-COLA BOTTLING CO.

DUBLIN COCA-COLA BOTTLING CO.

v.COLEMAN.

Nos. 22879, 22880.

Court of Appeals of Georgia,

Division No. 2.

Aug. 18, 1933.

Syllabus by Editorial Staff.

Error from Superior Court, Laurens County; R. Earl Camp, Judge.

Suit by Felton Coleman, by next friend, against the Dublin Coca-Cola Bottling Company. To review a judgment of nonsuit, plaintiff brings error, defendant filing a crossbill of exceptions.

Reversed on main bill of exceptions, and affirmed on cross-bill.

Lester F. Watson, of Dublin, and A. Russell Ross, J. H. Milner & Will Ed. Smith, all of Eastman, for plaintiff in error.

J. S. Adams, of Dublin, for defendant in error.

Syllabus Opinion by the Court.

JENKINS, Presiding Judge.

[1, 21 1. Under section 3021 of the Civil Code 1910, "until majority, the child remains under the control of the father, who is entitled to his services and the proceeds of his labor, " but "this parental power is lost" (among other prescribed ways) "by the failure of the father to provide necessaries for his child, or his abandonment of his family." Section 3021, par. 3. In such event, 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. Civil Code, § 2994; Savannah Ry. Co. v. Smith, 93 Ga. 742 (1), 744, 21 S. E. 157; Newton v. Cooper, 13 Ga. App. 458 (1, 2), 79 S. E. 356. The statutory right of the parent to sue is merely declaratory of the common law, where such "right to recover is, by legal fiction, predicated upon the relation of master and servant, " and is "limited to the recovery of damages for loss of the child's services." Frazier v. Ga. R. Co., 101 Ga. 70, 72-75, 28 S. E. 684; Shields v. Yonge, 15 Ga. 349 (2), 356, 60 Am. Dec. 60S. But "in no case can a father maintain an action for a wrong done to his minor child, unless the father has incurred some direct pecuniary injury therefrom, in consequence of loss of service * * * necessarily consequent thereon, " or necessary expenses incurred thereby. Sorrels v. Matthews, 129 Ga. 319, 321, 58 S. E. 810, 820, 13 L. R. A. (N. S.) 357, 12 Ann. Cas. 404. The mother, who under the statute stands in the place of the father in supporting their child after the father's abandonment of his family, acquires no greater rights.

2. "That a father may emancipate a minor child by allowing him to receive the proceeds of his labor is settled by our Code, and by decisions of this court. Allowing the child to receive the proceeds of his own labor amounts to an emancipation." Hargrove v. Turner, 112 Ga.134, 135, 37 S. E. 89, 81 Am. St. Rep. 24. Such a manumission may be temporary, under the statute, by the father's express or implied "consent to the child receiving the proceeds of his own labor, which consent shall be revocable at any time" (Civil Code, § 3021, par. 4), for a particular employment, in which event it does not follow "that the minor had been manumitted by the father for the whole period of his minority." Atlanta R. Co. v. Smith, 94 Ga. 107 (4), 111, 20 S. E. 703, 764; Wilson v. McMillan, 62 Ga. 16, 18, 35 Am. Rep. 115. Or the father may permanently lose his parental rights to the child's services and their proceeds by express or implied consent, or by his failure "to provide necessaries for his child, or his abandonment of his family." Civil Code, § 3021 (3); Vale Royal Mfg. Co. v. Bradley, 8 Ga. App. 483 (3), 490, 491, 70 S. E. 36; Richter v. Va.-Car. Chemical Co., 1 Ga. App. 344 (2), 57 S. E. 939. A mother of a minor, who is a widow or stands in the place of the father after his abandonment of the family, likewise may manumit the child under the same conditions which apply to the father. See Harris v. Johnson, 98 Ga. 434 (2), 436, 437, 25 S. E. 525. The presumption is that the earnings of a minor child belong to the father, if living, unless he has abandoned the child to the mother living separately from him, and that they belong to her, if the mother has thus become entitled to the child's services; and, where it is claimed that the earnings belong to the minor, that presumption must be overcome by proof of either express or implied manumission. See Jones v. McCowen, 34 Ga. App. 801, 131 S. E. 290.

3. In the instant action of a fifteen year old minor, suing by his grandfather as next friend for the recovery of damages from drinking a bottle of Coca-Cola, bottled by the defendant, the evidence shows that the father abandoned the child and his mother ever since the boy was about a month old; that the mother remarried; that the boy lived only on rare occasions in her home on account of differences with the stepfather; that he generally lived with his grandfather, where he worked for wages or for a "patch" of his own, and was allowed to work for others; that his mother had not contributed anything to his support for four or five years, and had not required him to account for his wages or any part of his earnings, and he had spent what he earned upon himself; and that she "is not claiming anything for his services, " and "has consented for him to work and earn what he could for himself." This uncontro-verted evidence was amply sufficient to authorize, if indeed it did not demand, a finding that the minor had been manumitted by both father and mother, so as to entitle him to proceed by next friend for the loss of his own earnings, and the nonsuit, which was granted on motion of the defendant, could not have been properly awarded on the theory that the evidence showed that only the mother was entitled to recover for the loss of his earnings.

(a) It was error to exclude the evidence of the minor, seeking to prove conversations with him by his mother relative to his receiving the proceeds of his own labor, and that she "had told him prior to the filing of this suit it was satisfactory to her for him to leave home, and make his own way in the world, and that she expressly consented for him to receive the proceeds of his labor, " upon the grounds that "the witness was incompetent to testify as to any such such conversation, and that a mere verbal statement made by the mother to the plaintiff would not. have the effect of manumitting the plaintiff, and have the effect of authorizing him to receive the proceeds of his labor." There was no better or more direct method of proving an express manumission by the mother; and the plaintiff, a fifteen year old minor, was competent like any other witness to prove such an agreement with the mother.

4. The instant petition sought a recovery for the minor not only of lost earnings, but for permanent injuries and pain and suffering from drinking an alleged poisonous foreign ingredient placed in the beverage compounded and bottled by the defendant. There was proof as to the earnings and earning capacity of the boy, and also evidence as to his severe stomach pains, vomiting of blood, bodily pain, and illness. Plaintiff's counsel in their brief admit that the evidence did not sustain the charge of permanent injuries, but insist upon actual damages. The special damages shown related to loss of earnings and a doctor's bill. With reference to general damages and pain and suffering, " 'general' damages are such as the law presumes to flow from any tortious act, and may be recovered without proof of any amount" (Civil Code, § 4507), and under this section it is held that "the law infers bodily pain and suffering from personal injury and loss of time from the disabling effect thereof." County of Bibb v. Ham, 110 Ga. 340, 341, 35 S. E. 656. In this case, there was evidence besides the inference from the injury shown.

(a) A minor as well as an adult may recover for pain and suffering. Elk Cotton Mills v. Grant, 140 Ga. 727 (6), 733 (6), 79 S. E. 836, 48 L. R. A. (N. S.) 656; Williams v. Jones, 26 Ga. App. 558 (3)...