Coleman v. Hyer

• Decision Date: 25 May 1901
• Citation: 38 S.E. 962,113 Ga. 420
• Parties: COLEMAN et al. v. HYER et al.
• Court: Georgia Supreme Court

38 S.E. 962

113 Ga. 420

COLEMAN et al.

v.HYER et al.

Supreme Court of Georgia.

May 25, 1901.

WRONGFUL DEATH—ACTION—DISTRIBUTION OF PROCEEDS.

Construing sections 3828 and 3829 of the Civil Code together, and in the light of the decision of this court in Mott v. Railroad Co., 70 Ga. 6S0, 48 Am. Rep. 595, and of legislation since that decision, the children mentioned therein are the minor children of the deceased father. Consequently, when a widow recovers a judgment against a railroad company for the negligent homicide of her husband, his children, who were adults at the time of hisdeath, are not entitled to share in the proceeds of the judgment.

(Syllabus by the Court.)

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by Annie L. Coleman and R. S. Hyer against Fannie Hyer and another. Judgment for defendants, and plaintiffs bring error. Affirmed.

Arnold & Arnold, for plaintiffs in error.

Payne & Tye and Burton Smith, for defendants in error.

SIMMONS, C. J. It appears from the record that W. L. Hyer, an engineer in the employ of the Western & Atlantic Railroad Company, was killed In a collision. His widow instituted against the company a suit for damages, under sections 3828 and 3829 of the Civil Code, and recovered a verdict therein. In the meantime, Mrs. Coleman and R. S. Hyer filed a petition in equity against Mrs. Hyer and the railroad company, asking that the latter be enjoined from paying over the amount recovered to the widow, who was alleged to be insolvent. Upon the hearing it was agreed that Mrs. Coleman was a married woman, and that both she and R. S. Hyer were children of the deceased by a former wife, but were of full age, and living apart from the deceased, at the time of his death. Mrs. Hyer denied that the petitioners were entitled to any interest in the recovery for her husband's homicide, and refused to pay them any part thereof. The judge was asked by both parties to grant the injunction If the petitioners had any interest in the recovery; to refuse it, if they had not. He refused the injunction, and the petitioners excepted.

The controlling question in this case is whether, in section 3829 of the Civil Code, the word "children" is Intended to include minor children only, or to embrace all children, without regard to age. In determining this question, sections 3828 and 3829 must be considered and construed together. In so far as pertinent to a case of this kind, they are as follows:

"Sec. 3828. A widow or, if no widow, a child or children may recover for the homicide of the husband or parent; and if 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 to the surviving child or children.

"Sec. 3829. The word 'homicide, ' used In the preceding section, shall be held to include all cases where the death of a human being results from a crime or from criminal or other negligence. The plaintiff, whether widow, or child, or children, may recover the full value of the life of the deceased, as shown by the evidence. In the event of a recovery by the widow she shall hold the amount recovered subject to the law of descents, as if It [had] been personal property descending to the widow and children from the deceased, and no recovery had under the provisions of this section shall be subject to any debt or liability of any character of the deceased husband or parent. The full value of the life of the deceased, as shown by the evidence, is the full value of the life of the deceased without deduction for necessary or other personal expenses of the deceased had he lived."

We must also consider the history of these sections, and the previous decisions of this court in which they have been construed. In the first place, it must be conceded that the words "child" and "children" may be used to Include all children, whether adult or minor. But we think that they were not so used in the sections under consideration. In the Code of 1868 (section 2920) the law on this subject was stated as follows: "A widow or, If no widow, a child or children may recover for the homicide of the husband or parent; and if 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." This section was held to give to children the right to recover only the present worth of a reasonable support for them during minority, in view of the father's condition in life, etc., and according to his expectation of life. David v. Railroad Co., 41 Ga. 223. The Code section remained unchanged in the Code of 1873 (section 2971), but was amended by the act of 1878 so as to provide that, "in case of suits under said section either the widow or children, as the case may be, shall recover the full value of the life of the deceased." This act also provided that, "in the event of a recovery by the widow, she shall hold the amount recovered subject to the law of decedents just...