Mott v. Cent. R.R.

• Decision Date: 28 February 1883
• Parties: Mott. vs. Central Railroad.
• Court: Georgia Supreme Court

70 Ga. 680

Mott. vs. Central Railroad.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1883.

Actions. Parent and Child. Torts. Before Judge Clark. City Court of Atlanta. December Term, 1882.

Mott sued the Central Railroad for the homicide of his father, R. L. Mott. The declaration, besides alleging the manner of the death of deceased from being run over by the train of defendant, and charging negligence therein, alleged that "plaintiff is the only child of Randolph L. Mott; there is no widow." Plaintiff admitted that he was more than twenty-one years of age at the time of bringing the suit.

Defendant demurred to the declaration on the ground, among others, that plaintiff was not entitled to sue as a " child" of the deceased. The demurrer was sustained, and plaintiff excepted.

Smith & Russell; Hopkins & Glenn, for plaintiff in error.

A. R. Lawton; Henry Jackson, for defendant.

Hall, Justice.

This record presents for determination but a single question, which arises under Code of 1882, §2971, and is whether the adult child of a party who has been killed by a railroad train, and who has left neither widow or minor child, can maintain a suit against the corporation, to recover damages for the homicide? The section in question, as it stood in the Code of 1873, was as follows: " A widow, or if no widow, a child or children may recover for the homicide of the husband or parent, and if suit be brought by the widow or children, and the former, or one of the latter, dies pending the action, the same shall survive in the first case to the children, and in the latter case to the surviving child or children." The Code of 1882 makes this addition: " The plaintiff, whether widow, or child or children, may recover the full value of the life of the deceased, as shown by the evidence. In the event of a recovery by the widow, she shall hold the amount recovered, subject to the law of descent, just as if it had been personal property descending to the widow and children from the deceased, and no recovery had, under the provisions of this section and the law of which it is amendatory, shall be subject to any debt or liability of any character of the deceased husband or parent."

In this addition is embodied the provisions of an act, approved December 16th, 1878, and which is entitled "an act to amend §2971 of the Code of 1873, so as to provide that, in case of suits under said section, either the widow orchildren, as the case may be, shall recover the full value of the life of the deceased, and prescribing the manner in which the widow shall hold the amount recovered, and for other purposes." This act makes three additions to the section, as it was codified prior thereto from the acts of 1850, Cobb\'s Dig., p. 476; acts 1855, pam., p. 155. First: It provides a measure of damages in case of a recovery. Second: Where the recovery is had by the widow, it provides for the descent of the property. Lastly, it exempts the amount recovered from the debts and liabilities of the husband or parent.

The section, as it stood prior to the passage of this act, had been several times interpreted by this court. In David vs. The Southwestern Railroad Company, 41 Ga., 223, it was held that, if a widow die pending a suit for the homicide of her husband, the right of action for such homicide survives to the children, and in such last suit, the measure of damages is the injury to the children, to be measured as in case of the widow, by a reasonable support for them, according to the condition, etc., of their father, and according to the expectation of his life as found by the mortuary tables." Inasmuch as a father is bound ordinarily for the support of his children only during their minority, the necessary inference from this decision would have been that only minor children were entitled to the action, in case there was no widow, or the widow had died during the pendency of the suit brought by her; but McCay, J., delivering the opinion of the court, was not content to leave this important matter to inference, however clear and strong that inference was. He says: " The measure of damages in such a case is the present worth of a reasonable support for them...