Holmes v. Southern Ry. Co.

• Decision Date: 10 May 1916
• Citation: 88 S.E. 924,145 Ga. 172
• Parties: HOLMES v. SOUTHERN RY. CO.
• Court: Georgia Supreme Court

88 S.E. 924

145 Ga. 172

HOLMES v. SOUTHERN RY. CO.

Supreme Court of Georgia

May 10, 1916

Syllabus by the Court.

The decisions in Southern Ry. Co. v. Covenia, 100 Ga 46, 29 S.E. 219, 40 L.R.A. 253, 62 Am.St.Rep. 312, and Atlanta Consolidated St. Ry. Co. v. Arnold, 100 Ga 566, 28 S.E. 224, which were rendered by a majority of the Supreme Court, were not in terms modified by the ruling in James v. Central of Georgia Ry. Co., 138 Ga. 415, 75 S.E. 431, 41 L.R.A. (N. S.) 795, Ann.Cas. 1913D, 468; nor was there such necessary inconsistency between the two former rulings and that last mentioned that they were by force thereof modified, but they remain as decisions of a majority of the Supreme Bench, and therefore as precedents to be followed by the Court of Appeals.

Where in a suit by a parent for damages on account of loss of services of a child 2 years and 4 months old, alleged to have been negligently killed by a railway train, it was alleged that the child was precocious, strong, robust, and endowed with unusual physical powers for a child of her age, that she ran on errands, helped bring in wood, swept the house, helped to attend to plaintiff's younger child, and generally waited on plaintiff and helped in the household work, and contributed to the support of plaintiff, and that the latter was dependent upon her, and that the value of the child's services was $3 per month, to which petition a demurrer was filed, if considered as an original proposition, the members of this court are equally divided in opinion as to whether a court can judicially know that the facts thus alleged are, as matter of law, untrue, because so unreasonable as to be legally impossible. Under this division of opinion the decision in Atlanta Consolidated St. Ry. Co. v. Arnold supra, stands as a decision of a majority of this court. It involved a child alleged to be between 2 1/2 and 3 years of age (which was construed by a majority of the court in the case of James v. Central of Ga. Ry. Co., supra, as being equivalent to an allegation that the child was about 2 1/2 years old). This includes the lesser age of 2 years and 4 months.

Certified Questions from Court of Appeals.

Action by Mrs. D. E. Holmes against the Southern Railway Company. Judgment for defendant, and plaintiff brings error. Heard on certified questions from the Court of Appeals. Questions answered.

p>Page J. M. Bleckley, of Cochran, and Roberts & Smith of Eastman, for plaintiff in error.

Eschol Graham, of McRae, for defendant in error.

HILL J.

The Constitution declares:

"The decisions of the Supreme Court shall bind the Court of Appeals as precedents." Article 6, § 2, par. 9 (Civil Code of 1910, § 6506).

This applies not only to cases in which the Supreme Court renders a unanimous decision, but also to those in which the decision is by a majority of the court. A decision rendered by the Supreme Court prior to January 1, 1897, and concurred in by three judges or justices, cannot be reversed or materially changed except by the concurrence of at least five justices. Unanimous decisions rendered after said date by a full bench of six shall not be overruled or modified except with the concurrence of six justices, and then after argument had in which the decision, by permission of the court, is expressly questioned and reviewed. Civil Code, § 6207. The rule just above stated does not apply to a decision of the Supreme Court not concurred in by the entire bench. Such decisions may be modified or altered by a majority of the justices of the Supreme Court, or may be compelled to yield to later decisions in conflict with them; but while they stand unchanged they are decisions of the Supreme Court which furnish precedents for the Court of Appeals.

In Southern Railway Co. v. Covenia, 100 Ga. 46, 29 S.E 219, 40 L.R.A. 253, 62 Am.St.Rep. 312, a declaration alleged the tortious killing of a child 1 year 8 months and 10 days old, and averred that he was a boy well formed, precocious, and of strong, robust physical powers for a child of his age; that he was physically sound, and was capable of rendering and did render valuable services by going upon errands to the houses of neighbors near by, picking up and bringing in coal and chips, bringing the broom and other articles used in housecleaning to its mother, picking up and carrying out of the house trash and litter which tended to render untidy in appearance the plaintiff's home, and watching and amusing the plaintiff's younger child while his wife was engaged in attending to her household duties; and it was alleged that these services were worth to the plaintiff the sum of $2 per month. It was held that the allegations of the petition...