Fuller v. Inman

• Decision Date: 06 March 1912
• Docket Number: 3,751,3,752.
• Citation: 74 S.E. 287,10 Ga.App. 680
• Parties: FULLER v. INMAN. INMAN v. FULLER.
• Court: Georgia Court of Appeals

74 S.E. 287

10 Ga.App. 680

FULLER v. INMAN.

INMAN v. FULLER.

Nos. 3,751, 3,752.

Court of Appeals of Georgia

March 6, 1912

Syllabus by the Court.

In order for a mother to recover, under the provisions of section 4424 of the Civil Code of 1910, for the tortious homicide of her minor child, it must appear that at the time of the homicide she was "dependent," either wholly or partially, upon the child, and that the child contributed substantially or materially to the mother's support. In such a case the mother may recover, notwithstanding the father of the child is in life, in good health, living with the family, and exercising his parental rights over the child up to the time of the child's death. It is the fact of contribution and dependency which creates the right of action in favor of the mother, and not the legal obligation to contribute to her support; and the contribution may be either in labor or in money.

It cannot be held as a matter of law that a child six years of age, of average capacity and experience, is incapable of contributing substantially or materially to his mother's support, and to such an extent as that her support is either wholly or partially dependent upon such contribution.

Where a mother sues for the tortious homicide of her minor child, an allegation that the child was at the time of death between six and seven years of age is not subject to special demurrer. In such a case it is immaterial whether the child be six or seven. Nor, in such a case, where it is alleged that the child was run over by an automobile and killed, is an allegation that the child was at a point "close" to a named crossing subject to special demurrer.

Where a petition states the facts upon which the claim of negligence is based, a general allegation in the petition, following a statement of the facts relied upon to show negligence, will be construed to have reference to the particular facts pleaded; and, so construed, it is not subject to special demurrer.

In a case of the character mentioned in the preceding headnotes an allegation that the deceased would have been a useful man to the petitioner and to the community should be stricken, on special demurrer.

An allegation in the petition in such a case that the deceased child contributed to the support of the plaintiff, and that she was dependent upon him, is not subject to special demurrer, when the facts upon which this conclusion is based are set forth in the petition. The general averment will be construed to have reference to the special facts pleaded.

There was no error in the judgment overruling the special demurrer of which complaint was made in the cross-bill of exceptions.

(Additional Syllabus by Editorial Staff.)

Under Acts 1910, p. 92, requiring a person operating an automobile to give reasonable warning of its approach by the use of a bell, horn, gong, or other signal, and to use every reasonable precaution to insure the safety of pedestrians and animals on the roadway, an allegation, in a petition for causing the death of a child by running him down with an automobile, that the driver of the car failed to give any warning by bell, horn, or other signal, was sufficient, being a statement of fact, and not a conclusion.

Under Acts 1910, p. 92, providing that an automobile shall not be operated at a rate of speed greater than is reasonable and proper, having regard to the use and traffic of the highway and that upon approaching a sharp curve the person operating the machine shall have it under control and operate it at a speed not greater than six miles per hour, allegations, in a petition for causing the death of a minor by an automobile, that the car came around a curve without warning, that it came at great speed, and that the rate of speed was not reasonable or proper, taken together, are not subject to demurrer.

In an action for causing the death of a minor child by running him down with an automobile, averments of the petition that the defendant was chargeable with the conduct of her chauffeur, and that the negligence of the chauffeur was the negligence of the defendant, were surplusage and harmless.

In an action for causing the death of plaintiff's minor child, an averment that the decedent and petitioner were free from fault, and could not have avoided the result of defendant's negligence by ordinary care, is not a conclusion of the pleader, but an allegation of a substantive fact.

In an action for causing the death of a child six years of age, an allegation that the decedent's earning capacity would be increased as he grew older is a statement of fact, and is sufficiently definite, and is not subject to special demurrer, where, though there is no direct allegation that the deceased had earning capacity, there are averments from which the conclusion that he did have earning capacity and contributed to plaintiff's support is properly drawn.

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by Mrs. M. C. Fuller against Miss Jennie Inman. To a judgment for plaintiff, defendant excepts, and plaintiff files a cross-bill of exceptions. Reversed on main bill; affirmed on cross-bill.

Plaintiff brought suit to recover for the alleged wrongful homicide of her son by the defendant. The petition was as follows:

"Georgia, Fulton County. To the City Court of Atlanta: The petition of Mrs. M. C. Fuller shows the following facts:

"(1) The defendant is Miss Jennie Inman.

"(2) Defendant is a resident of said state and county.

"(3) Defendant has damaged petitioner in the sum of $25,000, by reason of the following facts:

"(4) On or about the 26th of March, 1911, petitioner's son, James Dewey Fuller, was killed by the motor vehicle of defendant.

"(5) At said time petitioner's son was on the Howell's Mill road, a public road in said county.

"(6) He was at a point close to a crossing known as 'Woodward's Post Office,' or 'Brooked,' same being about a mile beyond the waterworks reservoir.

"(7) There was on the roadside at the time a wagon headed north.

"(8) The wagon was standing still, and the driver thereof was sitting in the same.

"(9) The deceased was standing behind the wagon. A young man of the neighborhood was standing on the side of the wagon toward the middle of the road.

"(10) This was at a point about 80 yards south of the crossing above referred to, and just a few feet north of a point where another street or road ran into the Howell's Mill road.

"(11) At the crossing referred to as 'Woodward's Post Office,' or 'Brooked,' were several stores and a blacksmith shop, and it was a populous country cross-road.

"(12) On the street which ran into the Howell's Mill road, right at the place of the killing, were a number of houses, and the place was a populous country cross-roads settlement. Just north of 'Woodward's Post Office,' or 'Brooked,' referred to, the road curved sharply to the east.

"(13) The deceased could not see the motor vehicle coming, because of the wagon.

"(14) The wagon was a top wagon and a milk wagon.

"(15) The motor vehicle of the defendant came around the curve without any warning by bell, horn, or other signal of any sort. The motor vehicle crossed the crossing known as 'Woodward's Post Office,' or 'Brooked,' without any warning by bell, horn, or other signal of any sort.

"(16) The motor vehicle passed the group of stores without any warning by bell, horn, or other signal of any sort.

"(17) The motor vehicle approached the wagon and the other street, and struck the deceased, without any warning by bell, horn, or other signal of any sort.

"(18) It came at a great rate of speed.

"(19) Petitioner charges the rate of speed was not reasonable, having regard to the traffic use of the highway, and that the same endangered life and limb of those upon the highway.

"(20) Said machine approached both of the crossings herein referred to at a greater rate of speed than six miles an hour, and the defendant approached the deceased and the wagon and the two men by it without giving any warning of any sort by the use of bell, horn, or other signal of any sort.

"(21) Petitioner further shows the entire action of the defendant herein was negligent.

"(22) The motor vehicle was being operated and run by an employé of the defendant.

"(23) The defendant herself was at the time in the vehicle.

"(24) The defendant was chargeable with the action and conduct of the chauffeur. The negligence of the chauffeur was the negligence of the defendant.

"(25) The deceased was free from all fault or negligence, and could not have avoided the result of defendant's negligence by the use of ordinary care.

"(26) Petitioner was free from all fault or negligence, and could not have avoided the result of defendant's negligence by the use of ordinary care.

"(27) The deceased was between six and

seven years of age, and was a strong, well-grown boy for his age.

"(28) Deceased lived with petitioner and her husband and seven of her children. The deceased was the youngest child, and all the older children were either at work or going to school.

"(29) The deceased ran on errands, helped split kindling, bring in wood, helped with the cows, and generally waited on petitioner, and helped in the household work, doing all of those innumerable little things to be done in the house which a child can do as effectively or more than a grown person. The deceased contributed to petitioner's support, and she was dependent on him.

"(30) As the deceased grew up, approached and reached manhood, his earning capacity would have been increased, and he would have been valuable and useful to petitioner and the community.

"(31) Petitioner sues for the full financial value of the life of the deceased.

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