Peppers v. Smith

Decision Date31 October 1979
Docket Number57535,Nos. 57534,s. 57534
Citation261 S.E.2d 427,151 Ga.App. 680
PartiesPEPPERS v. SMITH et al. (two cases).
CourtGeorgia Court of Appeals

Frank M. Gleason, Rossville, John W. Davis, Jr., Athens, for appellant.

James S. Kilpatrick, Rome, Dennis Watson, LaFayette, for appellees.

SMITH, Judge.

We granted this interlocutory appeal to determine whether a mother, divorced from her husband, with lawful custody of her minor child, has a cause of action in tort for loss of services and for medical, funeral and burial expenses arising out of the alleged wrongful death of such child. The trial judge, answering this question in the negative, struck the portions of the complaint demanding recovery for these items. We reverse.

1. Code § 53-511 states: "If a tort shall be committed upon the person or reputation of the wife, the husband or wife may recover therefor; If the wife shall be living separate from the husband, she may sue for such torts and also torts to her children, and recover the same to her use." (Emphasis supplied.) "The statute only requires the wife to be living separate from the husband in order to give her the right of action . . ." Amos v. Atlanta R. Co., 104 Ga. 809, 814, 31 S.E. 42, 44 (1898).

Appellees argue that, notwithstanding Code § 53-511, a mother may not maintain an action for loss of services and for medical, funeral, and burial expenses unless the father of the child has lost his parental power. In support of this position appellees cite Code § 74-108, which provides: "Until majority, the child shall remain under the control of the father, who is entitled to his services and the proceeds of his labor. This parental power shall be lost by: 1. Voluntary contract, releasing the right to a third person. 2. Consenting to the adoption of the child by a third person. 3. Failure of the father to provide necessaries for his child, or his abandonment of his family. 4. Consent of father to the child's receiving the proceeds of his own labor, which consent shall be revocable at any time. 5. Consent to the marriage of the child, who thus assumes inconsistent responsibilities. 6. Cruel treatment of the child." Appellees assert that Code § 74-108 is applicable to the case at bar under Cohen v. Sapp, 110 Ga.App. 413, 414, 138 S.E.2d 749, 751 (1964), which held: "Under Code § 74-108, the right of action to recover damages for loss of services and medical expenses arising from tortious injury to a minor is in the father; and it is only in the event that the father has lost his parental power that 'the mother, living separately from the father, and having the entire custody of their minor child, is entitled to the services of the child and the proceeds of his labor, and, in case of a tort to the child, may sue and recover the same to her use' . . ." We agree with appellees that under Cohen v. Sapp, supra, appellant could not maintain this action without the loss of parental power by the father. However, we do not believe that Cohen v. Sapp, supra, is an accurate statement of the law and we overrule it insofar as it permits a mother to recover loss of services and medical expenses arising out of a tortious injury to her minor child "only" in the event that the father has lost his parental power.

Where a father has lost his parental power, as in the case of abandonment, it is well settled that the mother rather than the father is entitled to bring an action for loss of services and for medical expenses resulting from a tortious injury to the child. King v. Southern R. Co., 126 Ga. 794, 796, 55 S.E. 965 (1906). However, this is not to say that the right of the mother to maintain an action is conditioned upon the loss of parental power by the father. Under Code § 53-511, the fundamental requirement relating to recovery for tortious injury to a child is that the mother be living apart from her husband. Amos v. Atlanta R. Co., supra. We do not believe that Code § 74-108 effects a change in this requirement. Although abandonment of the family may satisfy the language of Code § 53-511, requiring...

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5 cases
  • Rogers v. DeKalb County Bd. of Tax Assessors
    • United States
    • Georgia Supreme Court
    • June 23, 1981
    ...is reversed. As this has not occurred, appellant's final enumeration of error need not be considered. See Peppers v. Smith, 151 Ga.App. 680, 682-683(2), 261 S.E.2d 427 (1979). Judgment All the Justices concur. ...
  • General Ins. Services, Inc. v. Marcola, s. A97A1846
    • United States
    • Georgia Court of Appeals
    • March 12, 1998
    ...issues in the case. [Cits.]" Cohen v. Sapp, 110 Ga.App. 413, 415(2), 138 S.E.2d 749, overruled on other grounds, Peppers v. Smith, 151 Ga.App. 680(1), 681, 261 S.E.2d 427. The trial court's instruction on equitable recoupment did not itself adequately address whether defendants were entitle......
  • Atkinson v. Atkinson, s. 38084
    • United States
    • Georgia Supreme Court
    • April 7, 1982
    ...summary judgment in favor of defendants held that he was not entitled to medical or funeral expenses based on Peppers v. Smith, 151 Ga.App. 680, 261 S.E.2d 427 (1979), and McDaniel v. Bliss, 156 Ga.App. 166, 274 S.E.2d 138 The trial court in denying Thomas' motion to intervene in Judy's act......
  • Atlanta Cas. Co. v. Jones, 36785
    • United States
    • Georgia Supreme Court
    • March 3, 1981
    ...have been entitled to maintain an action in her own right and recover a judgment "to her use." Code Ann. § 53-511; Peppers v. Smith, 151 Ga.App. 680, 261 S.E.2d 427 (1979). In view of the well settled rule "that all statutes are presumed to be enacted by the legislature with full knowledge ......
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