Ga. R.R. & Banking Co v. Spinks

• Decision Date: 09 August 1900
• Citation: 36 S.E. 855,111 Ga. 571
• Court: Georgia Supreme Court
• Parties: GEORGIA RAILROAD & BANKING CO. v. SPINKS.

111 Ga. 571

36 S.E. 855

GEORGIA RAILROAD & BANKING CO.

v.SPINKS.

Supreme Court of Georgia.

Aug. 9, 1900.

DEATH BY WRONGFUL, ACT—PERSON ENTITLED TO RECOVER—DEPENDENT.

A man whose earnings are sufficient to adequately support himself is not "dependent, " within the meaning of section 3828 of the Civil Code, although he may by law be chargeable with the maintenance of others, for the support of whom and himself such earnings are insufficient. (a) Accordingly, a father whose monthly wages were enough to more than afford him individually a support commensurate with his circumstances and standing in life was not, under the provisions of the section cited, entitled to recover the full value of the life of an unmarried minor son tortiously killed, and whose mother had died, although, because of the insufficiency of the father's wages to support himself and also his family, consisting of a second wife and minor children, he received contributions in money from the son while living.

(Syllabus by the Court.)

Error from superior court, Fulton county.

Action by H. D. Spinks against the Georgia Railroad & Banking Company. Verdict for plaintiff. From an order denying a new trial, defendant brings error. Reversed.

Jos. B. & Bryan Cumming and Sanders McDaniel, for plaintiff in error.

Arnold & Arnold, for defendant in error.

LUMPKIN, P. J. On the trial of an action brought by H. D. Spinks, under section 3828 of the Civil Code, against the Georgia Railroad & Banking Company, for the full value of the life of his minor son, Pearl Spinks, there was a verdict for the plaintiff. A motion for a new trial was filed by the company, and to the overruling thereof it excepted. Taking the evidence most favorably for the plaintiff, which is proper, since the verdict was in his favor, the facts on which it rests are, in substance, as follows: The death of Pearl Spinks was occasioned, without fault on his part, by the negligence of the company. He had never married, and his mother died before he was killed. At and before the time of the homicide the earnings of H. D. Spinks exceeded $100 per month, and they were largely more than sufficient for his individual support He had a family, which included a second wife and minor children, who were dependent upon him. His wages were not sufficient to afford him and them a support commensurate with their circumstances and standing in the community in which they lived, and the son before his death made contributions in money to his father, which the latter used in maintaining himself and family.

The motion for a new trial, the general grounds of which were abandoned, raises no controversy as to the amount of the verdict, and really presents for decision here the sole question, was the plaintiff, upon the state of facts above disclosed, entitled to any recovery at all from the defendant? This question, differently stated, is resolvable into the inquiry: Was H. D. Spinks a dependent person, within the meaning of the Code section on which his action was predicated? It declares: "A mother, or, if no mother, a father, may recover for the homicide of a child, minor or sui juris, upon whom she or he is dependent, or who contributes to his or her support, unless said child leave a wife, husband or child. Said mother or father shall be entitled to recover the full value of the life of said child." After full reflection and careful deliberation, we are satisfied that the plaintiff was not "dependent, " in the sense in which this word was used in framing the statute under consideration. In Smith v. Hatcher, 102 Ga. 160, 29 S. E. 162, the opinion was expressed that it is a harsh one, and should be strictly construed. But for it, a father's interest in the life of a minor child would be limited to the value of his services during minority, and the former would have no interest at all in the life of an adult child. So much, therefore, of the statute as confers upon parents the right to sue for the wrongful killing of a child is in large measure punitory, and hence the reason for holding that at least this portion of the homicide act should be subjected to strict construction. It is not, however, a purely penal act; for, if the general assembly had intended that for every death resulting from crime or negligence a right of action should arise, it would have taken care to so provide, and in no case would a plaintiff be wanting. The act therefore is, to a considerable extent, compensatory in its character. This being so, what was its design relatively to the...