Frazier v. Georgia R.R. & Banking Co.

• Decision Date: 07 May 1897
• Citation: 28 S.E. 662,101 Ga. 77
• Parties: FRAZIER v. GEORGIA RAILROAD & BANKING CO.
• Court: Georgia Supreme Court

28 S.E. 662

101 Ga. 77

FRAZIER v. GEORGIA RAILROAD & BANKING CO.

Supreme Court of Georgia

May 7, 1897

Syllabus by the Court.

1. Where a parent, entitled to bring an action of tort for the homicide of a son, dies without having instituted suit, the right of action does not survive to the administrator of such parent.

2. The act of the general assembly approved October 22, 1889 (Acts 1889, p. 73), which is entitled "An act to amend section 2967 of the Code of Georgia so as to prevent abatement of action ex delicto in certain cases, where either of the parties may die pendente lite," saves pending actions only, and for that purpose its provisions are within the scope of its title; but, in so far as it purports to create in the personal representatives of a deceased person a cause of action, it contravenes that clause of the constitution of this state which prohibits the passage of an act which refers in its title to more than one subject-matter, or which contains matter different from that expressed in the title.

3. In the present case the action was brought by the administrator of the deceased parent for damages resulting from the homicide of a minor child, and was therefore properly dismissed on demurrer.

Error from superior court, Taliaferro county; S. Reese, Judge.

Suit by Alexander Frazier, as administrator of Mrs. Frazier, against the Georgia Railroad & Banking Company, to recover for the negligent killing of intestate's minor son. From a judgment for defendant, plaintiff brings error. Affirmed.

Saml. H. Sibley, for plaintiff in error.

Jos. B. & Bryan Cumming and M. P. Reese, for defendant in error.

SIMMONS C.J.

Willie Frazier was killed in 1892, by alleged negligent acts of the Georgia Railroad & Banking Company. He left, surviving him his mother, who, it is alleged, was dependent upon him for support. The mother died shortly after the son, and had before her death brought no action for his homicide. Alexander Frazier was appointed administrator upon the mother's estate, and he began an action against the railroad company to recover, for the benefit of the mother's estate, the value of the son's life. To the petition the defendant demurred, on the ground that no cause of action had survived the mother to be prosecuted by her administrator. The trial judge sustained the demurrer, and dismissed the action, and to this the plaintiff excepted.

1. The act of 1887 (Civ. Code, § 3828) gives a mother the right to bring an action for the homicide of her son upon whom she is dependent or who contributes to her support, unless the son leave a wife or children. If the mother had lived, and brought her action, and had then died pending the action under the acts of 1889 (Civ. Code, § 3825), the action would not have been abated by her death, but her administrator could have been made a party, and prosecuted the suit to judgment. She having died before the suit was instituted, her right of action did not survive to her administrator.

2. It is contended, however, by our able and learned young brother that although the action was not brought in the lifetime of the mother, under the act of 1889 (Civ. Code, supra), the right of action did survive to the administrator, under that clause of the act which declares that "such cause of action, in case of the death of the plaintiff, shall, in the event there is no right of survivorship...