King v. Southern Ry. Co.

• Decision Date: 15 November 1906
• Citation: 55 S.E. 965,126 Ga. 794
• Parties: KING v. SOUTHERN RY. CO.
• Court: Georgia Supreme Court

55 S.E. 965

126 Ga. 794

KING v. SOUTHERN RY. CO.

Supreme Court of Georgia

November 15, 1906

Syllabus by the Court.

For a negligent injury to a minor, causing loss of services and entailing expenses for medicine and nursing, the right of action is in the father, if he be alive at the time of the injury.

If for such a tort a right of action accrued, it did so immediately upon the happening of the injury, and was in the father although he may have been injured at the same time with the child, and may have lived only a short time thereafter.

In such a case, if a right of action arose to the father, and he died before any suit was brought, the cause of action did not survive to the mother of the child.

Error from Superior Court, Habersham County; J. J. Kimsey, Judge.

Action by Josephine King against the Southern Railway Company.Judgment for defendant, and plaintiff brings error.Affirmed.

Reuben Arnold, W. S. Pickrell, and Howard Thompson, for plaintiff in error.

J. J Strickland, for defendant in error.

LUMPKIN J.(after stating the facts).

The exact question made is: Where a father, mother, and minor daughter were in a buggy passing over a railroad crossing and the father and daughter were injured by the running of a train, and the father died about an hour afterwards, did the mother have a right of action against the railroad company on account of the injury to the minor daughter?The suit was not brought by the daughter for permanent injuries to herself, or by the mother as her next friend, but by the latter in her own behalf, based on loss of services and necessary expenses prior to the arrival of the daughter at the age of 21 years.The question stated may be divided into two others: First, at the time of the injury to the daughter, to whom did the cause of action arise?And, second, if to the father, upon his death in a short time thereafter, did the right survive to the mother?

The first of these questions is answered by Civ. Code 1895, § 3816, which reads as follows: "Every person may recover for torts committed to himself, or his wife, or his child, or his ward, or his servant."This is only a codification of the pre-existing law, and the basis of the suit is loss of services and necessary expenses.Shields v. Yonge,15 Ga. 349, 356, 60 Am.Dec. 698;Central Railroad Co. v Brinson,64 Ga. 476;Civ. Code 1895, § 2502.If a right of action accrues at all on account of a personal injury, it arises immediately upon the occurrence thereof.The damages may continue for years or be permanent in character, but the right to sue arises at once.This being so, and the father being in life at the time of the injury to his minor daughter, the right of action on account of the loss to him during her minority vested in him.It is said that, because he was hurt at the same time, and died about an hour later, the injury and the death should be treated as coincident.But we can find no authority for such a contention.He was actually alive for an hour after the occurrence.If compos mentis, he could have made a will or a deed, or could have settled with the railroad for the damage accruing to him from the injury to his daughter.In that brief hour he might possibly have sued, or have been sued and served.If the daughter had been killed, and had left an estate, there can be no doubt that the father would have inherited along with brothers and sisters, if any, under Civ. Code 1895, § 3355, par. 6, which declares that: "The father, if living, inherits equally with brothers and sisters, and stands in the same degree.If there be no father, and the mother is alive, she shall inherit it in the same manner as the father would."

Can it be said that, because he lived only a short time, he could have been treated as not alive at all, and that, in the supposed case of the daughter's death before he himself died, the mother would have inherited instead?We are unable to hold a man who is actually alive, and has so many legal rights, to be dead in contemplation of the law, relatively to the particular right involved in this case.A person cannot at once be actually both alive and dead, and one who has been hurt by a railroad train cannot for that reason be treated as civiliter mortuus.Civ. Code 1895, § 2503, provides that "Upon the death of the father, the mother is entitled to the possession of the child until his arrival at such age that his education requires the guardian to take possession of him."She takes the custody of the child, however, as she finds it at the death of the father, and this statute gives no right of action on account of a prior personal injury to the child.It may seem to be somewhat of a hardship that an injured child may be left with the mother, upon the death of the father, and that she cannot sue for the previous injury to it, and the shortness of the time during which the father lived may make this view more striking; but we cannot change the law on account of sympathy.If the fact that the father lived for an hour only would create a cause of action in the mother which did not otherwise exist, how would it be if he had lived for six hours, or a day, or a week, or a year, or, indeed, for any time less than that in which the child would become of age?In any of these supposed cases the same argument, that the mother was left in possession of an injured child (supposing the injury to be permanent, as alleged), would equally apply.The difference would be one only of degree, not of kind.It is also sought to bring the case within the rule that, where a wife is living separate from her...