Savannah Elec. Co. v. Thomas

• Citation: 118 S.E. 481,30 Ga.App. 405
• Decision Date: 25 June 1923
• Docket Number: 13959.
• Parties: SAVANNAH ELECTRIC CO. v. THOMAS.
• Court: Georgia Court of Appeals

118 S.E. 481

30 Ga.App. 405

SAVANNAH ELECTRIC CO. v. THOMAS.

No. 13959.

Court of Appeals of Georgia, Second Division

June 25, 1923

Syllabus by the Court.

A mother may recover for the tortious homicide of her child upon whom she is dependent either wholly or in part, and who contributes substantially or materially to her support. Clay v. Central R. & Banking Co., 84 Ga. 345 (1), 10 S.E. 967; Daniels v. Savannah, etc., Ry. Co., 86 Ga 236, 12 S.E. 365; Richmond & Danville R. Co. v Johnston, 89 Ga. 561, 15 S.E. 908; Augusta Railway Co. v. Glover, 92 Ga. 132 (6), 18 S.E. 406; Augusta Southern R. Co. v. McDade, 105 Ga. 134 (7), 31 S.E. 420; Central of Ga. Ry. Co. v. Henson, 121 Ga. 462 (3) 49 S.E. 278; Savannah Electric Co. v. Bell, 124 Ga. 663 (2), 665; Atlantic Coast Line R. Co. v. McDonald, 135 Ga. 635 (7), 70 S.E. 249; Fuller v. Inman, 10 Ga.App. 680 (1), 74 S.E. 287; Civ. Code 1910, § 4424.

In such a case the mother "may recover the full value of the life of the deceased, as shown by the evidence, * * * without deduction for necessary or other personal expenses of the deceased had he lived." Civ. Code 1910, § 4425; Clay v. Central R. & Banking Co., supra; Atlantic Coast Line R. Co. v. McDonald, 135 Ga. 635 (3), 70 S.E. 249.

"If she were accustomed to earn money, and her individual earnings were sufficient to adequately support her in keeping with her station in life, she would not be dependent in the sense as contemplated by the provisions of the statute above mentioned. Georgia Railroad Co. v. Spinks, 111 Ga. 571, 36 S.E. 855." Atlantic Coast Line R. Co. v. McDonald, 135 Ga. 635 (7, a), 70 S.E. 249.

On the contrary, the fact of another but insufficient means or source of support will not defeat her action. Daniels v. Savannah, etc., Ry. Co., supra; Savannah Electric Co. v. Bell, supra.

If the father and mother are living in a state of separation, and the earnings of the mother and those of a child living with her and contributing substantially or materially to her support "were used for the common support of the two, and the earnings of both were necessary to the support of both, the mother would be dependent upon the child in the sense as employed by the statute. Daniels v. Savannah, etc., Railway Co., 86 Ga. 236, 12 S.E. 365; Richmond, etc., Railroad Co. v. Johnston, 89 Ga. 560, 15 S.E. 908; Augusta Railway Co. v. Glover, 92 Ga. 132, 18 S.E. 406; Atlanta, etc., Ry. Co. v. Gravitt, 93 Ga. 369, 20 S.E. 550, 26 L.R.A. 553, 44 Am.St.Rep. 145; Central Railway Co. v. Henson, 121 Ga. 464, 49 S.E. 278; East Tennessee, etc., Ry. Co. v. Maloy, 77 Ga. 237, 2 S.E. 941. 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, supra." Atlantic Coast Line R. Co. v. McDonald, 135 Ga. 635 (7, b), 70 S.E. 249.

The contribution of the child, as contemplated by the statute, may be either in money or labor. Fuller v. Inman, supra.

It cannot be said as a matter of law that a child of normal physical and mental development of the age of 6 years and 2 months is incapable of contributing to the support of its mother in the sense employed by the statute, but the question is properly one for determination by the jury. Sugarman v. Atlanta Street Railway Co., 94 Ga. 604, 21 S.E. 581; Crawford v. Southern Railway Co., 106 Ga. 870 (3), 33 S.E. 826; James v. Central of Ga. Ry. Co., 138 Ga. 415 (1), 75 S.E. 431, 41 L.R.A. (N. S.) 795, Ann.Cas. 1913D, 468; Central of Ga. Ry. Co. v. James, 143 Ga. 753 (3), 85 S.E. 920; Fuller v. Inman, supra; Crenshaw v. Louisville & Nashville R. Co., 15 Ga.App. 182, 82 S.E. 767. See, also, Holmes v. Southern Ry. Co., 145 Ga. 173 (2), 88 S.E. 924, Ann.Cas. 1918D, 1182, in which the Supreme Court was equally divided upon the question in regard to a child about 2 1/2 years of age.

(a) The case of Fuller v. Inman, supra, is in full accord with the decisions of the Supreme Court on this question, and the request to review and overrule it cannot be entertained.

"It is essential to the maintenance of an action by a parent for the homicide of his child, that the former should, at the time of the homicide, be to a material extent dependent upon the latter for a support, and that the child should then be actually contributing thereto." Smith v. Hatcher, 102 Ga. 158 (1), 29 S.E. 162; Central of Ga. Ry. Co. v. Henson, 121 Ga. 462 (3), 49 S.E. 278.

(a) The assignments that certain charges were erroneous for omitting this principle are without merit, for the principle was implied, even though not expressed in the excerpts complained of. Furthermore, the jury were elsewhere instructed: "But, in order for a mother to recover, it must appear that at the time of the homicide she was dependent either wholly or partially upon the child, and that the child contributed materially or substantially to her support."

(b) Instructions of this character were not subject to the exception that they were not warranted by the evidence.

The evidence authorized the finding that at the time of the homicide the mother was dependent in part upon the child, and that the child was contributing substantially or materially to her support; also that the negligence of the defendant was the proximate cause of the child's death.

"Assignments of error must specifically point out why the ruling or decision complained of is error. A general averment of error in the exclusion of stated evidence is therefore insufficient. Wall v. Hawker Pottery Co., 27 Ga.App. 255 (2), 108 S.E. 134." City of La Grange v. Cotter, 29 Ga.App. 577 (4), 116 S.E. 204. This applies especially to the ground of the defendant's amended motion for a new trial based upon the exclusion from evidence of the divorce and alimony proceedings between the plaintiff and her husband, the child's father.

The court charged the jury as follows: "The defendant contends that its car was being moved on West Broad street, going north; that there were children playing on West Broad street; that one crossed the line of track, and another attempted to cross and immediately in front of a moving car; that the child is young, admitted to be 6 years and a few months old, and the contention on the part of the defendant is that it exercised all ordinary care and diligence to prevent the accident--to prevent the homicide." It is assigned that this incorrectly stated the real contentions of the defendant, to wit, "that the plaintiff's minor child attempted suddenly and without notice to the motorman in charge of the car to cross the track suddenly and without notice, running into the side of a moving car." The motorman, a witness for the defendant, testified: "This little boy was running in front of the car. He ran right in front of the car, and I * * * did all in my power to stop the car before it struck the boy." "While I was applying the brakes, this child got on the tracks. I couldn't possibly stop the car before the boy was struck." "When I first saw the boy he was 5 or 8 feet from the car, * * * running into the car." No witness for the defendant gave a materially different version of the occurrence. The charge was correct in its reference to the street or location of the homicide. The street was not shown to have been crowded. The defendant's answer contained only a general denial of the plaintiff's allegations. We therefore cannot say that the charge was a misstatement of the defendant's contentions.

"In a suit for a negligent tort, where the question of diminution of damages by reason of negligence on the part of the person injured is not raised by the pleadings of either party, it does not constitute reversible error for the court, in the absence of a request, to omit to charge on that subject, where he has charged fully as to the effect of the negligence of the injured person upon the right to recover at all; although it is the better practice to charge on the subject of comparative negligence and diminution of damages where the evidence authorizes it." Powell v. Berry, 145 Ga. 696 (5), 89 S.E. 753, L.R.A. 1917A, 306; Western & Atlantic R. Co. v. Watkins, 14 Ga.App. 388 (7), 80 S.E. 916; Central of Ga. Ry. Co. v. Hill, 21 Ga.App. 231 (2), 94 S.E. 50; Western & Atlantic R. Co. v. Jarrett, 22 Ga.App. 313 (3), 96 S.E. 17; Georgia Ry. & Power Co. v. Freeney, 22 Ga.App. 457 (2), 459, 96 S.E. 575; Savannah Electric Co. v. Crawford, 130 Ga. 421 (1), 60 S.E. 1056; Louisville & Nashville R. Co. v. Smith, 136 Ga. 455 (2), 71 S.E. 774; Alabama, etc., R. Co. v. Brown, 138 Ga. 328 (7), 75 S.E. 330; Western & Atlantic R. Co. v. Smith, 145 Ga. 276 (5), 88 S.E. 983. While it is contended in ground 9 of the motion for a new trial that the contributing negligence was by the mother, this principle is applicable as against the movant.

Assuming (but not deciding) that a mother, who is charged with the custody and control of her child of the age of 6 years and 2 months and who sues for its negligent homicide, under the provisions of section 4424 of the Civil Code of 1910, if herself negligent in permitting the child to go unattended upon the public street where street cars were operated, by which it was killed, would be responsible for a standard of care or conduct in the child such as should be exercised by an ordinarily prudent adult, or by the child had it been attended and controlled by an ordinarily prudent adult, the existence or nonexistence of such negligence on her part would be a question for determination by the jury, and only a collateral issue in the case, and it therefore would afford no cause for a new trial that the court, in the absence of a timely written request, failed to instruct the jury that in such circumstances she would be responsible for such a...