Savannah Elec. Co. v. Bell
| Decision Date | 12 January 1906 |
| Citation | 53 S.E. 109,124 Ga. 663 |
| Parties | SAVANNAH ELECTRIC CO. v. BELL. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
An action by a mother under Civ. Code 1895, § 3828, for the homicide of a child who contributed to her support and upon whom it was claimed that she was dependent, will not be defeated by proof that a tract of land, title to which is in another child, is charged with the support of the mother when, under the evidence, the jury were authorized to find that neither the income which might be derived from the use of the land, nor the sum which would probably be derived from an investment of the proceeds of a sale of the land, would place the parent in a condition of independence.
In a suit under the section of the Civil Code cited above, it is not necessary, in order for the plaintiff to recover, that she show by the evidence that she depended alone upon the deceased child for her entire support. It is sufficient if she established partial dependence upon the child's labor, accompanied by contributions therefrom to her maintenance.
When the charge of the judge is taken in its entirety, it presents a full and fair exposition of the law of the case. The extracts therefrom upon which error was assigned were not erroneous for any reason assigned, and the requests for instructions, which were refused, so far as legal and pertinent, were covered by the language of the charge.
The evidence authorized the verdict, and the amount assessed as damages cannot as matter of law be said to be excessive.
Error from Superior Court, Chatham County; Geo. S. Cann, Judge.
Action by Mary Bell against the Savannah Electric Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Osborne & Lawrence, for plaintiff in error.
Travis & Edwards and Adams & Adams, for defendant in error.
COBB P.J. (after stating the foregoing facts).
The following request in writing to charge was refused by the court, and is one of the grounds in the motion for a new trial: "If you should find from the evidence that the plaintiff conveyed a tract of land to her daughter Nancy M Futch, the consideration of the same being the support of the plaintiff for and during the term of her natural life, and that Nancy M. Futch accepted the same, and you should find that in consideration of the conveyance to her by James I Bell of a tract of land in Bulloch county, Ga., the said Nancy Futch further agreed to support plaintiff for and during the term of her natural life, and that said tract of land was charged in said conveyance with the support of the said plaintiff, and that said Nancy Futch has never broken her contract, and that the said tract of land has never been subjected by the plaintiff to her support, and that said Nancy Futch has never given plaintiff cause to subject the same, but that same remains intact and still charged with the support of the plaintiff, June 25, 1904, then you should find in favor of the defendant." We do not think that this would have been a proper charge to give to the jury. The statute gives the parent a right of recovery for the death of a child upon whom she was in part dependent, and who contributed to her support. There may have been another source of revenue from which the parent derived a benefit, but this would not necessarily defeat the parent's right of action. Daniels v. Railway Co., 86 Ga. 236, 12 S.E. 365. There may have been some person, other than the deceased, who was charged with the legal duty of supporting the parent, and against whom, in case of failure to render such support, an action would lie. But it was not the purpose of the statute to require, as a condition precedent to a parent's recovery for the homicide of a child, that such parent should exhaust every legal right she possessed against every person or all property charged with her support. The right of action consists in the contribution by the child and the fact that, under the circumstances as they existed at the time of the homicide, the parent was dependent upon such child in whole or in part for her support. Central Ry. Co. v. Henson, 121 Ga. 462, 49 S.E. 278; Richmond & Danville R. Co. v. Johnston, 89 Ga. 561, 15 S.E. 908; Smith v. Hatcher, 102 Ga. 160, 29 S.E. 162. We do not, of course, mean to hold that a parent possessed of property from which an ample support could be derived, but who, for reasons satisfactory to him, does not see fit to use this source of income as a means of support, and uses it for other purposes, and permits a child to contribute to his support, would be dependent in the meaning of the statute. But the mere fact that a parent is in a position where he has the legal right to call upon another person for support, and when in response to this call only a partial support would be the result, the parent would be dependent upon the contribution of the child which would be necessary in any event to complete the amount required for the maintenance of the parent. The fact that the parent does not call upon the other source of income would not under such circumstances bar a recovery. The present case is one where the rule which we now promulgate is peculiarly applicable. The jury were authorized to find under the evidence that the land chargeable with the support of the plaintiff was not producing a sufficient amount for that purpose, and they were also authorized to find that, if this land had been sold at the highest proved value, this amount invested would not produce an income sufficient for the support of the parent. While the income in the one instance derived from the operation of the farm, or the income in the other instance derived from the investment of the purchase price, would have materially aided in the support of the plaintiff, it would not have rendered her independent of the contributions of the child, which were necessary in order to bring about a state of independency. It is not necessary, under the statute, that the child contributing to the support of the parent should be under any legal obligation to make the contribution. It is the fact of contribution, and not the legal obligation to make it, that the statute makes the ingredient of the cause of action. Daly v. New Jersey Co., 155 Mass. 5, 29 N.E. 507.
2. Error is assigned upon an extract from the charge which instructed the jury that plaintiff would be entitled to recover if she were partially dependent for her support upon the deceased. A request upon the subject of dependency was refused in the language in which it was written; the word "partially" being interpolated before the word "dependent." Error is also assigned upon this. U...
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