Mcdowell v. The Ga. R.R.

Decision Date31 January 1878
Citation60 Ga. 320
PartiesMcDowell. v. The Georgia Railroad.
CourtGeorgia Supreme Court

Torts. Damages. Parent and child. Actions. Before Judge Clark. City Court of Atlanta. December Term, 1877.

Reported in the decision.

*Hopkins & Glenn; M. de Graffenreid; W. L. Calhoun, for plaintiff in error.

N. J. Hammond; Henry Hillyer, for defendant.

Warner, Chief Justice.

The plaintiff brought his action against defendant to recoverdamages for an alleged injury done to his daughter, eighteen years of age, by the careless and negligent running of its locomotive and tender on its railroad track at the crossing thereof in the city of Atlanta, whereby the plaintiff alleges that his said daughter was run over, crushed, bruised, and mutilated, by means whereof she died, living one-half hour from the time she received said injury; that the plaintiff\'s said daughter was unmarried and was of great pecuniary service and advantage to him, to wit: the sum of three thousand dollars a year. The plaintiff also alleged, that prior to bringing this suit, to wit: at the October term of this court, 1874, a bill of indictment was preferred against Joseph Bennett, the engineer who had charge of the locomotive and tender which ran over and killed the said plaintiff\'s daughter, Lizzie, charging him with the crime of murder, and that the grand jury, after investigation, found "no bill, " for which reason plaintiff has not prosecuted Bennett further. To this declaration the defendant tiled a general demurrer, which was sustained by the court and the plaintiff\'s case dismissed; whereupon the plaintiff excepted.

The age of legal majority in this state is twenty-one years; until that age all persons are minors. Code, § 1791. Until majority, the child remains under the control of the father, who is entitled to his services and the proceeds of his labor. Code, 1793. This case comes within the ruling of this court in Chick v. Southwestern Railroad Company, 57th Ga. Rep., 357, which was based on the unanimous opinion of the court in Shields v. Young, 15 Ga. Rep., 349, and must control it. The plaintiff's daughter was of *sufficient age to have performed service at the time of the injury, and he was entitled to her service until she became twenty-one years of age. The plaintiff is not entitled to recover damages for the homicide of his daughter under the 2971st section of the Code, but is entitled to recover damages for the loss of the services of his daughter, assuming that...

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8 cases
  • Brock v. Wedincamp
    • United States
    • Georgia Court of Appeals
    • January 15, 2002
    ...1858 codification permitted a cause of action only for the death of a husband or father, not for a wife or mother or child. McDowell v. Ga. R., 60 Ga. 320 (1878); Womack v. Central R. & Banking Co., 80 Ga. 132, 5 S.E. 63 (1888). While a second wrongful death statute in 1856 allowed a child ......
  • City of Albany v. Lindsey
    • United States
    • Georgia Court of Appeals
    • September 30, 1912
    ...injuries to his servant. See Shields v. Yonge, 15 Ga. 349, 60 Am.Dec. 698; Chick v. Southwestern R. R. Co., 57 Ga. 357. In McDowell v. Georgia R. R. Co., 60 Ga. 320, Supreme Court, while holding that a father could not recover for the homicide of his minor daughter, ruled that he might reco......
  • Kehely v. Kehely
    • United States
    • Georgia Supreme Court
    • November 16, 1945
    ... ... and for expenses of medicine and nursing, and expenses ... reasonably incurred in the burial of the child. McDowell ... v. Georgia R. R., 60 Ga. 320; Augusta Factory v ... Davis, 87 Ga. 648, 650, 13 S.E. 577; Augusta R. Co ... v. Glover, 92 Ga. 132, 18 S.E ... ...
  • Amos v. Atlanta Ry. Co
    • United States
    • Georgia Supreme Court
    • July 19, 1898
    ...an action for lost services can be maintained by the parent. Shields v. Yonge, 15 Ga. 349; Chick v. Railroad Co., 57 Ga. 357; McDowell v. Railroad Co., 60 Ga. 320. Rut it is insisted by the defendant that, inasmuch as the injury to the child occurred at a time when its services could not be......
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