Frazier v. Georgia R.R. & Banking Co.
| Decision Date | 07 May 1897 |
| Citation | 28 S.E. 684,101 Ga. 70 |
| Parties | FRAZIER v. GEORGIA RAILROAD & BANKING CO. |
| Court | Georgia Supreme Court |
1. In an action brought by the father of a minor son, capable of rendering service, for the negligent homicide of the latter he is entitled, in a proper case, to recover per quod servitium amisit.
2. While, to recover, it is necessary to show both the negligent homicide and loss of service, the latter, being the source of damages as to the father, is the gravamen or gist of the action, and the rights of the parties are to be established by the law applicable under such circumstances in the relation of master and servant.
3. The master has a property right in the services of his servant and a loss of service is, in legal effect, a damage to his personal estate; and the law limiting the time in which actions to recover for injuries to personalty may be brought limits the right of action in such a case.
Syllabus by the Court.
Error from superior court, Taliaferro county; S. Reese, Judge.
Suit by Alexander Frazier against the Georgia Railroad & Banking Company for damages for the negligent killing of his minor child. From a judgment for defendant, plaintiff brings error. Reversed.
Saml. H. Sibley, for plaintiff in error.
Jos. B. & Bryan Cumming and M. P. Reese, for defendant in error.
1. An examination of the record shows that the demurrer filed was based upon two grounds: (1) That the tort complained of did not occur within two years next preceding the bringing of the plaintiff's suit, and (2) because the declaration sets forth no valid legal cause of action against the defendant. The only question, however, which we find it necessary to decide here is that of the statute of limitations. This involves the inquiry only whether the action instituted by the plaintiff is for injuries done to the person, and to be brought within two years after the right of action accrues under section 3900 of the Civil Code, or whether it should be treated as an action for injuries to personalty, as claimed by the plaintiff, and therefore not barred until four years after the right of action accrues. The petition is filed by the father, alleging the wrongful homicide of his son, aged 14 years, by the servants and agents of the defendant engaged in the running and operation of its trains. It may be well to consider in the determination of this question the basis of the father's right to recover when he shall have made out a proper case. Section 3816 of the Civil Code provides that every person may recover for torts committed to himself, or his wife, or his child, or his ward, or his servant. This section is simply declaratory of the common law. Bell v. Railroad Co., 73 Ga. 520. At common law the parent's right to recover is, by legal fiction, predicated upon the relation of master and servant. Wood, Mast. & S. p. 449, and authorities cited under note 3; Cooley, Torts (2d Ed.) p. 268; 1 Jagg. Torts, pp. 451, 461, and authorities cited in note 23. The action is, at common law, limited to the recovery of damages for loss of the child's services. Cooley, Torts, p. 268, and authorities cited in note 4; 5 East, 45; 6 East, 391; 11 East, 23; T. Raym. 259; 1 Jagg. Torts, p. 451; Wood, Mast. & S. pp. 444, 445, quoting from Lord Coke, and citing authorities, at footnote 1. The decisions of our court are in entire harmony with the principles of the common law on this subject. Bell v. Railroad Co., 73 Ga. 520, supra; Railroad Co. v. Harrison, Id. 744; Shields v. Yonge, 15 Ga. 356; Allen v. Railroad Co., 54 Ga. 503; Chick v. Railroad Co., 57 Ga. 357; McDowell v. Railroad Co., 60 Ga. 320. Shields v. Yonge, 15 Ga. 349, 356, supra, is one of the earliest of our cases, and this court there held that a father may sue for injuries to his minor son as for injuries to his servant, if the son is old enough to render service. The case of Allen v. Railroad Co., 54 Ga. 503, recognized the same right of action in the parent, but ruled, however, that, if the child was incapable of rendering any service at the time the tort was committed, no recovery could be had. In the case of Chick v. Railroad Co., 57 Ga. 357, the same doctrine was enunciated, and in the case of McDowell v. Railroad Co., 60 Ga. 320, this court ruled that, while a father could not recover for the homicide of his minor daughter, he could recover for the loss of her service to the time of her majority, occasioned by such homicide. So that we can safely say that in a proper case-made the father of a minor son capable of rendering service may recover damages for the loss of service which he has sustained in consequence of the negligent homicide of the son.
2, 3. The form of the action to be brought under the common law was trespass vi et armis, per quod servitium amisit; that is that the defendant has by force committed a trespass upon the person of the child, whereby the plaintiff has sustained the loss of his service. While, to recover, it is necessary to show both the negligent homicide and the loss of service, it is the loss of service which is the source of damage to the plaintiff. 2 Bl. Comm. bk. 3, top p. 142, par. 4, says: "In this case [referring to a tort committed on the servant], besides the remedy of an action of battery or imprisonment which the servant himself as an individual may have against the aggressor, the master also, as a recompense for his immediate loss, may maintain an action of trespass vi et armis, in which he must allege and prove the special damage he has sustained by the beating of his servant, per quod servitium amisit, and then the jury will make him a proportionable pecuniary satisfaction,"--in line with which, in Robert Marys' Case, 9 Coke, 113a, Lord Coke lays down the rule to be: "If my servant is beat, the master shall not have an action for this battery, unless the battery is so great that by reason thereof he loses the service of his servant, but the servant himself, for every small battery, shall have an action; and the reason of the difference is that the master hath not any damage by the personal beating of his servant, but by reason of a per quod, viz. per quod servitium amisit, *** for, be the battery greater or less, if the master does not lose the service of his servant, he shall not have an action." In the same case Lord Coke says: "So that the original act is not the cause of his action, but the consequence upon it, viz. the loss of service is the cause of his action." The gist of the action is the loss of service. Wood, Mast. & S. p. 449, and authorities cited in notes 2, 3. The same doctrine is announced in Bigelow, Torts, 108, 109; 1 Minor, Inst. 224, and authorities cited. The wrong consists in actual damage by reason of loss of service or capacity to serve. 1 Jagg. Torts, 450; Knight v. Wilcox, 14 N.Y. 413. In the case of Allen v. Railroad Co., 54 Ga. 503, it was held that no recovery could be had by the father, because, while there was a homicide, there was no loss of service. The foundation of the plaintiff's action in a case like this is to recover damages for the loss of the service of the son, and not for the homicide. Fluker v. Banking Co., 81 Ga. 461, 8 S.E. 529. In the case of an actual parent, the loss of his service is the legal foundation of the action. 11 East, 23. By the common law, to entitle the parent to recover damages for a tort done to his child, the gist of the action is the loss of the services of the child by the parent. Allen v. Railroad Co., 54 Ga. 505. In pleading, "gist" means the essential ground or object of the action in point of law, without which there would be no cause of action. 1 Bouv. Law Dict. p. 712. The gist of action is the cause for which an action will lie, the ground or foundation of a suit, without which it would not be maintainable; the essential ground or object of a suit, and without which there is not a cause of action. And. Law Dict. p. 488; Bank v....
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