David v. The Sw. R.R. Co.

• Decision Date: 30 June 1870
• Citation: 41 Ga. 223
• Parties: JOHN H. DAVID, prochien ami, plaintiff in error. v. THE SOUTHWESTERN RAILROAD COMPANY, defendant in error.
• Court: Georgia Supreme Court

41 Ga. 223

JOHN H. DAVID, prochien ami, plaintiff in error. v. THE SOUTHWESTERN RAILROAD COMPANY, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, June Term, 1870.)

Railroad Companies. Minors. Measure of Damages. Before Judge Harrell. Randolph Superior Court, May Term, 1870.

Charles Rogers was killed in 1866, by an engine on the Southwestern Railroad. His widow brought case therefor, against the railroad company, returnable to November Term, 1868, of said Court. Pending that action, the widow died leaving divers minor children of herself and said Charles, surviving. John David, a prochien ami of said minors, was made a party plaintiff to said action, and prosecuted it for the benefit of said minors. At November Term, 1867, said cause *was tried, and the plaintiff was non-suited. The cause was brought to this Court, and at its June Term, 1868, was dismissed for want of prosecution. In July, 1868, within two years from the death of their father, said David as such prochein ami, again brought case against said company for said killing. The company pleaded the foregoing facts in bar to this last action, and the plea was demurred to generally The Court overruled the demurrer, and held that under said admitted facts this last action could not be maintained. This is assigned as error.

E. L. Douglass, H. Fielder, for plaintiff in error, said the action lav under Code, sec. 2920; 38th Ga. R., 433.

A. Hood, Lyon DeGraffenried and Irvin, for defendant.

By the Court—McCAY, J., delivering the opinion.

As we said in Johnson v. Macon and Western Railroad, 38th Georgia, 433, the language of the section 2920 of the Code, under which suit is brought, is not so clear as the importance of the subject demands. It is clear to us, however, that the object of the Act is to give a remedy to the widow, and, if there be no widow, or if she die before the question is settled, then to the children.

It is sticking in the bark to say that nothing survives to the children but the "action." The "action" is but an incident, a means of getting a right. It is the right of actionthat goes over to the children on the death of the mother.

The only question, as it seems to us, is the measure of damages in the action by the children. We do not think it is the mother's right which the statute gives to the children. If the mother die before final judgment, we think the intent of the Act was to give the children a right to sue, as though there had been no widow at first. They...