Peeler v. Central of Georgia Ry. Co.

• Decision Date: 18 February 1927
• Docket Number: 5408,5409.
• Citation: 137 S.E. 24,163 Ga. 784
• Parties: PEELER v. CENTRAL OF GEORGIA RY. CO. CENTRAL OF GEORGIA RY. CO. v. PEELER.
• Court: Georgia Supreme Court

137 S.E. 24

163 Ga. 784

PEELER v. CENTRAL OF GEORGIA RY. CO.

CENTRAL OF GEORGIA RY. CO. v. PEELER.

Nos. 5408, 5409.

Supreme Court of Georgia

February 18, 1927

Rehearing Denied March 5, 1927.

Syllabus by the Court.

The act of 1924 (Ga. Laws 1924, p. 60) is not unconstitutional as being in violation of Const. art. 3, § 7, par. 17, or art. 3 § 7, par. 8 (Civ. Code 1910, §§ 6437, 6445), for any of the reasons assigned.

It was the purpose of the General Assembly in the passage of this act to exclude dependency as a prerequisite essential to a child's right to recover for the homicide of a parent and the provision of the act entitling a child, whether minor or sui juris, to recover damages for the homicide of its parent, properly construed, makes the question whether the child is dependent upon such parent in any respect wholly immaterial.

Error from City Court of Macon; C. H. Hall, Judge.

Action by Mrs. Jane Bardwell Peeler against the Central of Georgia Railway Company. Judgment for defendant, plaintiff brings error, and defendant files cross-bill. Reversed on main bill and affirmed on cross-bill.

Gilbert J., and Beck, P.J., dissenting.

Jones, Part & Johnston, of Macon, for plaintiff in error.

Harris, Harris & Popper, of Macon, for defendant in error.

RUSSELL C.J.

Mrs. Jane Bardwell Peeler brought a suit to recover damages of the Central of Georgia Railway Company. She was the daughter of T. A. Bardwell. On March 26, 1925, T. A. Bardwell was killed on a crossing by a train of cars operated by that railway, known as the "Southland," a through train from the middle west to Florida. He left no widow, and but one surviving child, the plaintiff. She sued for the value of his life. The defendant presented a special demurrer calling for information as to whether the daughter was dependent for support upon her father. The plaintiff amended her petition by alleging:

That since her marriage "she and her husband have resided at her father's home, and she has continued to be a member of his family. After the death of her mother *** petitioner took charge of the housekeeping, and has continued since that time [ten years] to keep the house for her said father. During all this time her father paid the household expenses, and was always regarded as the head of the household. Petitioner's husband made some contribution to the support of the family, but the major portion of the expenses were borne, during the entire period and until the time of his death, by petitioner's father."

The court dismissed the action, on the ground that the plaintiff being a married woman, was not dependent, and therefore not entitled to recover. Exception to this ruling is taken by the plaintiff in the main bill of exceptions.

The defendant also demurred upon the ground that the Act of August 18, 1924 (Ga. Laws 1924, p. 60), amending section 4424 of the Code of 1910 by inserting "minor or sui juris," after the clause giving to a child or children the right of recovery for the homicide of the father, is unconstitutional, especially because it contains matter different from that expressed in the title. This demurrer was overruled, the court holding the act to be constitutional; and by cross-bill of exceptions the defendant challenges this ruling. There were a number of special grounds of demurrer, upon which the court declined to rule, and which are therefore not before us at this time for adjudication.

1. As a general rule, the constitutionality of a statute will not be passed upon if it is unnecessary to rule upon this point in order to decide a particular case. However, there is another rule of equal force and cogency, which requires that, if the controlling feature or at least the feature which most vitally affects, the question in a case is presented by a cross-bill of exceptions, the cross-bill should be first considered; and, in view of the general importance of the question, we shall first determine whether the lower court erred in adjudging that the act of 1924 is not subject to the attacks directed against it upon the ground that it is unconstitutional. The general demurrer upon the ground that the act of the General Asembly approved August 18, 1924, amending sections 4424 and 4425, is unconstitutional, was substantially as follows:

(a) Said act is null and void in so far as it seeks to give a right to a child sui juris to recover for the homicide of her father, because the act is in violation of article 3, § 7, par. 17, of the Constitution (Civil Code, § 6445), which provides that--

"No law, or section of the Code, shall be amended or repealed by mere reference to its title, or to the number of the section of the Code, but the amending or repealing act shall distinctly describe the law to be amended or repealed, as well as the alteration to be made."

(b) Said act is unconstitutional in so far as it seeks to give a right of recovery to a child sui juris, because said act is in violation of article 3, § 7, par. 8, of the Constitution, as found in section 6437, of the Code of 1910, as follows:

"No law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof."

(c) Said act is unconstitutional in so far as it seeks to give a right of recovery for the homicide of a parent to a child sui juris, because it violates article 3, § 7, par. 8, of the Constitution, by containing matter different from what is expressed in the title. The questions raised by these grounds of demurrer may be abbreviated into a single question, to wit, Is the act referred to unconstitutional either because the law to be amended or the alteration to be made is not distinctly described in the act, or because the amending law refers to more than one subject-matter, or because the act contains matter different from what is expressed in the title? It will be observed that this question is twofold; one relating to an alleged defect in the act, and the other to a similar defect in the title of the act.

The first ground of demurrer is based upon article 3, § 7, par. 17, of the Constitution, and it will be observed that this paragraph makes no reference whatever to the title of the act proposed to be passed, nor any requirement whatsoever as to what it shall contain. The language of the Constitution is:

"No law, or section of the Code, shall be amended or repealed by mere reference to its title, or to the number of the section of the Code, but the amending or repealing act [and not the title of the act] shall distinctly describe the law to be amended or repealed, as well as the alternation to be made."

A reading of the body of the act convinces us that the statute is not subject to the infirmity of which complaint is made. The first section declares that--

"from and after the passage of this act, section 4424 of the Code of Georgia of 1910, relating to recovery for homicide, be and the same is hereby amended by inserting after the words 'child or children,' in the second line thereof, the words 'minor or sui juris,' and by adding to said section the following words: 'In cases where there is no person entitled to sue under the foregoing provisions of this section, the administrator of the deceased person may sue for and recover for the benefit of the next of kin, if dependent upon the deceased, or to whose support the deceased contributed, in which event the amount of the recovery shall be determined by the extent of the dependency or the pecuniary loss sustained by the next of kin."'

Then the act proceeds to fully and "distinctly describe" section 4424, the law to be amended, by quoting it word for word as it will read when amended. The proposed amendment having already been stated in totidem verbis as well as their allocation in the statute as it stands before amendment, it would require but a small degree of intelligence to discover the exact verbiage of the original Code section sought to be amended by eliminating the few words proposed to be inserted and added in the proposed amendment. Code, § 4424, as it stood at the time the proposed amendment was offered, could not be more "distinctly described" in the amending act than to quote that Code section literally, and perhaps this might be said to be the most perfect way of complying literally with the constitutional requirement; but we do not think that the act falls under the inhibition of article 3, § 7, par. 17, of the Constitution, which forbids mere reference to the title of an act or the number of a Code section in the act amending the same, when it is patent from a statement of the proposed amendment and a literal statement of the verbiage of the enactment after its amendment that the act to be amended is literally quoted, and thus and thereby distinctly described. The statement of the demurrer that "there is no description of any evidence of any intention to amend said Code section 4424 so as to give a right of recovery to a child sui juris; and in so far as the said amending act seeks to alter the Code section 4424 by adding a right of recovery in a child sui juris, the act does not distinctly describe the alteration to be made," is evidently based upon the misapprehension that the provisions of article 3, § 7, par. 17, of the Constitution refer to the title, as do those of article 3, § 7, par. 8. However, as we have shown, such is not the case; and we hold that in this instance there has been full compliance with the constitutional requirement in this respect.

It is insisted that, in violation of article 3, § 7, par. 8, of the Constitution, the act of 1924 now under consideration refers to more than one subject-matter, and also contains matter different from what is expressed in the title. It is true that the title of the...