Reid v. Moyd

• Citation: 198 S.E. 703,186 Ga. 578
• Decision Date: 15 September 1938
• Docket Number: 12394.
• Parties: REID v. MOYD. [*]
• Court: Supreme Court of Georgia

198 S.E. 703

186 Ga. 578

REID v. MOYD. ^[*]

No. 12394.

Supreme Court of Georgia

September 15, 1938

Certified Question from Court of Appeals.

Action by Mary Reid against H. S. Moyd for the death of plaintiff's minor son. To review an adverse judgment, the plaintiff brought error to the Court of Appeals which certified a question to the Supreme Court.

Question answered.

Syllabus by the Court.

A child two and a half years old, unusually large and strong for his age, having the mental capacity of a child of at least five or six years, strong, robust, precocious, and capable of and actually running errands, is not conclusively and as a matter of law presumed to be incapable of rendering valuable services.

Ralph G. Sims and Walter A. Sims, both of Atlanta, for plaintiff in error.

T. J Long, of Atlanta, for defendant in error.

GRICE, Justice.

The Court of Appeals certified to this court the following question: 'Is a child two and a half years of age unusually large and strong for its age, having the mental capacity of a child of at least five or six years, strong robust, and precocious, capable of and actually running errands, conclusively and as a matter of law presumed to be incapable of rendering valuable services?' From the record which was transmitted to us with the certified question we are apprised that a mother brought suit for damages for the homicide of her minor son, alleging that the child contributed to her support, that she was dependent on the child, and that his age at the time of his death was two years and six months. By amendment she alleged that the child was unusually large and strong for his age, had the mental capacity of a child at least five or six years old, was strong and robust, was a precocious child capable of and actually running errands for his mother, and performed services worth the sum sued for, to wit, two dollars per week. It appears, therefore, that the suit was brought under the Code, § 105-1307. Before the mother can recover in such an action, she must be at least partially dependent on the child's labor, and the child must make a substantial contribution therefrom to the maintenance of the plaintiff. Central of Georgia Railway Co. v. Henson, 121 Ga. 462, 49 S.E. 278; Savannah Electric Co. v. Bell, 124 Ga. 663, 53 S.E. 109; Atlantic Coast Line R. Co. v. McDonald, 135 Ga 635(7), 70 S.E. 249 The fact that the earnings of the child alone might not be sufficient to support himself would not conclusively show that the mother was not dependent upon his services. Augusta Railway Co. v. Glover, 92 Ga. 132, 144, 18 S.E. 406; Atlantic Coast Line R. Co. v. McDonald, 135 Ga. 635(7), 70 S.E. 249. This court has recognized in certain cases that services rendered by a child to his mother about the home in the performance of household duties met the requirement that the child must have contributed substantially to her support. Augusta Railway Co. v. Glover, 92 Ga. 132, 18 S.E. 406; Altanta & Charlotte Air-Line Ry. Co. v. Gravitt, 93 Ga. 369, 20 S.E. 550, 26 L.R.A. 553, 44 Am.St.Rep. 145; Sugarman v. Atlanta Consolidated Street Ry. Co., 94 Ga. 604, 21 S.E. 581. These rulings should, we think, be borne in mind as we approach the solution of the problem presented to us in the instant case. If the question certified is to be answered in the affirmative, it is in view of one recital therein, to wit, the age of the child is two and a half years. On the one hand we are asked to rule that a child unusually large and strong for his age, having the mental capacity of a child of five or six years, strong, robust, and precocious, capable of and actually running errands, is conclusively and as a matter of law presumed to be incapable of rendering valuable services, since the child is only two and a half years of age. On the other hand, it is said that such a ruling should not follow solely on account of the stated age of the child, particularly in view of the other recitals in the question propounded.

In Allen v. Atlanta Street R. Co., 54 Ga. 503, it was said that a father can not maintain an action for damages on account of the homicide of his infant child who at the time of his death was incapable of rendering him any services. The age of the child was two years. That, however, is not a ruling that a child of that age is incapable of rendering its parent any service; for the parent brought suit only for the loss of services which the child would have later rendered had he lived. In Sugarman v. Atlanta Consolidated Street Ry Co., supra, the trial court's ruling was reversed for dismissing a petition which, with an amendment, alleged a negligent killing of a child not quite five years old, the suit being brought by a father to recover for the services of the child. In Southern Railway Co. v. Covenia, 100 Ga. 46, 29 S.E. 219, 40 L.R.A. 253, 62 Am.St.Rep. 312, it was held, one Justice dissenting, that the courts would take judicial cognizance of the fact that an infant one year, eight months, and ten days old was incapable of rendering valuable services, notwithstanding it was alleged that the infant was capable of rendering and did render valuable services which were specified. The case of Atlanta Consolidated Street R. Co. v. Arnold, 100 Ga. 566, 28 S.E. 224, and the decision there rendered, were similar to the Covenia Case, except that in the Arnold Case the allegation was that the child was between two and a half and three years old. The Arnold decision was by four Justices, one who had concurred in the Covenia Case being disqualified, and one who dissented in the Covenia Case dissented in the Arnold Case. In Crawford v. Southern Ry. Co., 106 Ga. 870, 33...