Crenshaw v. Louisville & N. R. Co.

• Decision Date: 11 September 1914
• Docket Number: 5742.
• Citation: 82 S.E. 767,15 Ga.App. 182
• Parties: CRENSHAW v. LOUISVILLE & N. R. CO. ET AL.
• Court: Georgia Court of Appeals

82 S.E. 767

15 Ga.App. 182

CRENSHAW v. LOUISVILLE & N. R. CO. ET AL.

No. 5742.

Court of Appeals of Georgia

September 11, 1914

Syllabus by the Court.

Under the decisions of the Supreme Court, there is in Georgia a conclusive legal presumption that an infant less than two years old is incapable of performing services of value to the parent, for which a recovery can be had in case of the tortious homicide of the infant. Beyond that age it may be a matter for determination by the jury whether or not the infant is capable of rendering valuable services. Southern Railway Co. v. Covenia, 100 Ga. 46, 29 S.E 219, 40 L.R.A. 253, 62 Am.St.Rep. 312; Atlanta Consolidated Street Railway Co. v. Arnold, 100 Ga. 566 28 S.E. 224; Crawford v. Southern Railway Co., 106 Ga. 870, 33 S.E. 826; James v. Central of Georgia Railway Co., 138 Ga. 415, 75 S.E. 431, 41 L.R.A. (N. S.) 795 Ann.Cas. 1913D, 468.

Additional Syllabus by Editorial Staff.

The basis of a father's right of action, under Civ. Code 1910, § 4412, providing that every person may recover for torts committed against his child or servant, for wrongful death of his child, is the loss of the services of the child; and hence there can be no recovery where the child was incapable of rendering services at the time of its death.

Error from City Court of Madison; K. S. Anderson, Judge.

Action by T. S. Crenshaw against the Louisville & Nashville Railroad Company and others. Judgment for plaintiff for less than claimed, and plaintiff brings error. Affirmed.

Middlebrooks & Burrus, of Madison, for plaintiff in error.

Jos. B. & Bryan Cumming, of Augusta, and E. W. Butler and F. C. Foster, both of Madison, for defendants in error.

WADE J.

T. S. Crenshaw, Jr., brought suit against the Louisville & Nashville Railroad Co. et al. lessees of the Georgia Railroad, for the killing of his minor child, a boy, alleged in the petition to have been 2 years and 2 months old at the time of his death, but shown by the proof at the trial to have been only I year, 10 months, and 9 days old. The evidence of the plaintiff showed that the child began walking when it was eight months old, and was not unusually developed for a child of its age, but was an ordinary, good, healthy child, of about the same size as other children of the same age; that he was active "and as smart as he could be," and that he would go out of doors and bring in five or six sticks of stove wood at a time for his mother, and would do anything his mother told him to do, and bring her anything in the house that he could carry; that he would bring her water to drink and could help her about the family washing, bringing chips and wood; that in the fall before his homicide in February, he picked cotton every day, going to the field with his mother and with the plaintiff, and altogether must have picked 100 pounds in all; that it was worth 50 cents to pick that quantity; that at the time he was killed his services were worth to the plaintiff, who was a blacksmith and farmer, at least $1 per month. The child was struck by a railroad train of the defendants, which was running at a high rate of speed, and died on the same day, and the plaintiff expended between $25 and $30 for his burial. The mother of the child testified to the same general effect, but fixed the value of the child's services to the father at $2 per month for picking cotton, bringing in wood, water, etc. She further stated that he began walking in May before he was killed the following February, and that he picked cotton the fall before his death (when he had been walking only from May until the fall of the same year), and would probably pick two or three pounds per day; that he wore dresses which she and her daughters had to pin or button on him, and also wore diapers; that he could bring his mother water in a dipper if the water was where he could reach it, and was "a smart child for his age." The child went down to the railroad track, when he was unobserved by the family, and was standing in the middle of the track when the engine struck him. A neighbor of the plaintiff testified that he lived close to the home of the plaintiff, and saw the child in the father's cotton patch during the fall before he was killed, but never noticed whether he was picking cotton. The grandfather of the child testified that he saw all of his son's children in the cotton patch during the preceding fall, and all were picking cotton, including the deceased child. Another witness for the plaintiff testified that in his opinion a child 18 or 20 months old could not pick much cotton, but might pull out a little and waste it on the ground, and could bring in one or two small sticks of wood; that a child 23 months old could not take care of itself, according to his knowledge as to his own children, and not as to the habits and customs of the children of other people in the community. This is all the evidence that is material for the determination of the case. The defendants' counsel moved the court to direct a verdict for the plaintiff for the sum of $31.30, burial expenses, which the defendants admitted the plaintiff was entitled to recover, and further moved the court to direct a verdict in favor of the defendants as to all the other elements of damage alleged in the plaintiff's petition, which the court did, over the objection of the plaintiff. The plaintiff excepted, alleging that the court erred in directing the verdict, because the undisputed evidence showed that the deceased child did in point of fact render valuable services to the plaintiff; and insisted that the jury should have been allowed to determine whether or not the services of the child were of any actual value to the plaintiff.

Under the provisions of Civil Code, § 4412:

"Every person may recover for torts committed to himself, or his wife, or his child, or his ward, or his servant."

Our Supreme Court has held that the torts contemplated by this section belong to that class of torts for which damages could have been recovered at common law for the loss of the services of a wife, child, ward, or servant (Chick v. Southwestern R. Co., 57 Ga. 357, 360), and the said section should be construed in the light of the common law of force in this state, since it is declaratory of that law ( Allen v. Atlanta Street Railroad Co., 54 Ga. 503; Bell v. Central Railroad, 73 Ga. 521; Frazier v. Georgia Railroad Co., 101 Ga. 72, 28 S.E. 684). Under the common law a father may sue for injuries to his minor son, just as he might sue for injuries to a servant, if the son be old enough to render services of value. Shields v. Yonge, 15 Ga. 349, 60 Am.Dec. 698; Allen v. Atlanta Street R. Co., 54 Ga. 505; Chick v. Southwestern R. Co., 57 Ga. 358; McDowell v. Georgia Railroad, 60 Ga. 321; Central R. Co. v. Brinson, 64 Ga. 475; Southern Railway Co. v. Covenia, 100 Ga. 46, 29 S.E. 219, 40 L.R.A. 253, 62 Am.St.Rep. 312; Amos v. Atlanta Railway Co., 104 Ga. 809-811, 31 S.E. 42. A father may sue where he loses the services of a child on account of any trespass done or any damage sustained, and may also sue for any expenses incurred which result from the injury complained of. Central Railway Co. v. Brinson, supra. It is well settled that the loss of services of a child by the parent is the basis, without which there would be no cause of action, and since it is the source of damage, it is, as to the father, the gist of the action, and the rights of the parties must be established by the law applicable under like circumstances between master and servant. See Allen v. Atlanta Street R. Co., Amos v. Atlanta Railway Co., Southern Railway Co. v. Covenia, Frazier v. Georgia Railroad Co., supra. In an action by a parent for the homicide of a child, it must therefore be alleged and shown that the homicide resulted in loss to the parent of the services of the child. Where the petition alleges merely that the child has been killed by the negligence of a railroad company, whereby the plaintiff is damaged, no cause of action is set out, and there is nothing to amend by. Bell v. Central Railroad, supra. The loss of services being the basis of the cause of action, it follows, as a necessary consequence, that if the child is incapable of rendering services at the time of the injury or homicide, the parent cannot recover. In Southern Railway Co. v. Covenia, supra, Chief Justice Simmons says, speaking for the court, that:

"Whatever may be the rule in other jurisdictions, it is well settled in this state that the gist of an action by a parent to recover damages for the death or injury of a minor child is the loss of services. * * * The loss of service being the cause of action, it follows that when the infant is incapable of rendering service at the time of its death or injury the parent cannot recover."

So much is conceded by able counsel for the plaintiff in error, and the sole question for our determination is whether or not, as a matter of law, a child less than two years old is incapable of rendering services of value to the parent; for if this be true, then the action of the trial judge in directing a verdict against the plaintiff, except for the amount of the expenses incurred on account of the homicide, was proper, and affords no sufficient ground for a reversal. In the case of Allen v. Atlanta Street R. Co., supra, the child for whose homicide the suit was brought was but two years old, and the court held that he was incapable of rendering any service at the time the alleged tort was committed,...