Ga. R.R. v. Fannie

• Decision Date: 31 July 1876
• Citation: 57 Ga. 277
• Parties: Georgia Railroad and Banking Company, plaintiff in error. v. Fannie V . Garr, defendant in error.
• Court: Georgia Supreme Court

57 Ga. 277

Georgia Railroad and Banking Company, plaintiff in error. v. Fannie V . Garr, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1876.)

Damages. Husband and wife. New trial. Before Judge Bartlett. Greene Superior Court. September Term, 1875.

Reported in the opinion.

J. A. Billups, for plaintiff in error.

*Reese& Reese; M. W. Lewis & Son; C. Heard, for defendant.

JACKSON, Judge.

This was a suit instituted by Fannie V. Garr, when she was Fannie V. Oakes, against the railroad company, for damages for the homicide of her husband. He was an engineer upon the road, and was killed at Union Point, in Greene county. Under the charge of the court, the jury found for the plaintiff something over $7,000 00. The company moved for a new trial on various grounds set forth in the motion, the presiding judge declined to grant it, and the company brought the case before us, assigning three grounds of error: First. That Mrs. Oakes had intermarried with another man, and was no longer Oakes' widow, and had thus lost her right to recover for his homicide. Second. That if she could recover at all, she could only recover a support, such as he was wont to furnish her, during the four years of her widowhood; and, thirdly, that the verdict was decidedly and strongly against the weight of the testimony, and that the presiding judge should have granted the new trial on this ground.

1. That the widow of Oakes had the right to sue when the suit was commenced is not disputed. The question first made is, did she lose it by her marriage? Suppose that she had inherited a fortune after the beginning of this suit, so that she would no longer have needed to recover the support, or the value of it, of her deceased husband, would she have lost this right of action? Clearly not. If not, does she lose it by marrying another man who now supports her, or ought to do so? If so, she does not lose it by not needing it, but by marrying. Can that be so? We think not. The policy of the law is to encourage marriage; this young widow waited some four years, and then, in no hot haste, but decently, and after a long widowhood, comparatively, married again; ought she to lose a right of action which had vested in her by this secondmarriage? Not if the policy of the law be to encourage *marriage: See Code, section 1697. But if this rightvested in her, how else could it get out of her but by the marriage? And if the policy be to encourage marriage, the courts will construe the law, if two constructions can reasonably be put upon it, so as to harmonize with the general policy of the state. Section 2971 of the Code, then, will be so construed as to harmonize with the policy of the state, if practicable. It reads: "A widow, and if no widow, a child or children, may recover for the homicide of the husband or parent, " and then it gives the right of survivorship to the children, if the widow dies, and to the remaining children if some of them die. If the legislature had intended the right of action ever to abate, we think they would have said so. If they had intended the widow to lose her right and it to go to the children in case of her marriage, how easy to have said not only that if the widow die the right shall survive to the children, but if she marry again! We hardly think that such an amendment could have passed the legislature. It would have been against their declared policy to encourage marriage, and would have been voted down, we think. At all events, they have not so enacted, and we think her right remains intact though she should marry. Besides, she is still a mother. She must take care of the child which the record shows her deceased husband...