Scott v. Torrance
| Citation | 25 S.E.2d 120 |
| Decision Date | 09 March 1943 |
| Docket Number | No. 29776.,29776. |
| Parties | SCOTT. v. TORRANCE. |
| Court | United States Court of Appeals (Georgia) |
Rehearing Granted March 18, 1943.
Rehearing Adhered to April 2, 1943.
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In an action by a mother, under the Code, § 105-1307, to recover damages for the homicide of her son, denial of a new trial after verdict for the defendant reversed because of erroneous instructions to the jury and erroneous rulings on admissibility of evidence.
Error from Superior Court, Baldwin County; J. B. Jackson, Judge.
Action by Gertrude M. Scott against E. A. Torrance for the death of plaintiff's son, Ralph Scott. Judgment for defendant, and plaintiff brings error.
Reversed.
E. W. Maynard, S. G. Jones, and E. P. Johnston, all of Macon, Musser, Kimber & Huffman, of Akron, and Carlyle Giles, of Milledgeville, for plaintiff in error.
Hines & Carpenter, Geo. S. Carpenter, and Marion Ennis, all of Milledgeville, and Harris, Russell, Weaver & Land, of Macon, for defendant in error.
A number of students at Georgia Military College, desiring to attend a football game in Tennessee, made arrangements with E. A. Torrance to take them in a school bus. Torrance operated this bus regularly on school days to transport children to and from their schools. On non-school days he frequently used the bus for special trips. On the occasion in point the students did not charter the bus and assume control over it. Torrance merely agreed to transport them at $2 each.
During the progress of the trip, at a place where the roadway was 16 feet wide and not in first-class shape, a large truck loaded with bales of cotton approached, traveling in the opposite direction at a speed estimated at from 50 to 60 miles per hour. The evidence indicates clearly that the inside wheels of the truck were on or slightly over the center line of the roadway, and that the body of the truck projected over into the lane which the bus was entitled to use. The shoulder of the roadway was in poor condition, dropping off some eight or ten inches. In order to avoid being sideswiped by the truck the driver of the bus, Major Silvey, who had taken the wheel with Torrance's consent, pulled it to the right; the right rear wheel ran off the pavement; the bus careened, ran about 90 feet and turned over, and Ralph Scott, seventeen, one of the students, was killed.
The bus was traveling about 35 miles per hour. The truck was in full view of the bus driver for at least 100 yards before it passed the bus (Torrance testified that he saw it when it was 300 yards away), and there was no evidence that Silvey slowed before he pulled to the right. The evidence showed that the bus, traveling at the speed stated, could have been stopped within 90 feet. Mrs. Gertrude M. Scott, Ralph's mother, sued Torrance fordamages. The verdict was for the defendant. The plaintiff's motion for new trial was overruled and she excepted.
The action was based on the Code, § 105-1307: "A mother * * * may recover for the homicide of a child, minor or sui juris, upon whom she * * * is dependent, or who contributes to her * * * support, unless said child shall leave a wife, husband, or child." Before the plaintiff could be entitled to recover it was necessary for her to show, first, dependency on her son and contribution by him to her support, and, second, that her son's death resulted from a failure of the bus driver to exercise the degree of care it was his duty to exercise. Failure to prove either would require a verdict for the defendant. From the verdict rendered, which was generally for the defendant in ordinary form, it can not be told whether the jury concluded that the plaintiff had failed in her proof as to the first item or as to the second.
1. The evidence as to dependency and contribution to support was, in substance, as follows: The Scott family consisted of Mr. and Mrs. Scott, Ralph, and one other child, a daughter. Mr. Scott was in business, his personal income being about $6,000 a year. For some years Mrs. Scott had been in poor health. From the time Ralph was five years old he had been waiting on his mother and doing odd jobs about the house. He ran errands for his mother when she was confined to her bed, and later, when he grew older, he did such things as washing windows and floors, firing the furnace, and mowing the lawn. He sold papers and magazines. He also mowed lawns for other people and received money for that work. He gave his mother part of the money he made and saved part of the rest. He gave his mother many presents which the evidence details. When he was old enough to enter high school most of those portions of his time which were not required for school duties were devoted to working for his father or helping his mother. He started a savings account in the joint names of his mother and himself. After he was sixteen he drove the car in connection with his father's business, picking up material, and for other purposes.
When he entered the Georgia Military College he gave his mother his bank book which showed a balance to his credit of $194. His mother did not draw any money from this account between the day he entered the college, September 9, and the day of his death, October 4, but she could have drawn on the account had it been necessary. During that interval, twenty-five days, Ralph made no contribution to the family. His mother expected him to return home for the Christmas holidays, and had he lived to do so he would have contributed his usual services, looking after the furnace, helping his father, and doing the other things he had been accustomed to do when at home. His father paid his fees for entering the college, some $200 for the half term which would have ended at Christmas. On one occasion, some years previously, Ralph had drawn from his bank account $28 which his mother needed to help pay her doctor's bill. When Ralph worked for his father the latter did not pay him a regular salary but paid him what he thought he earned. His estimated earning capacity during the summer before he was killed, during most of which time he worked for his father, was "possibly $150 per month."
Mr. Scott testified to many of the details which Mrs. Scott had covered in her testimony, and also described the nature of his business and the assistance Ralph had given him. He stated:
In view of the above and other evidence of a similar nature, none of which was contradicted, counsel for the defendant insist that the matter in question became one of law, and that a finding was demanded that Mrs. Scott had not shown that she came within the provisions of the Code, § 105-1307, supra. If we agreed with counsel in this it would of course render it unnecessary to consider any other feature of the case. But we are of the opinion that the contention can not be upheld. A great many cases arising under this section have been before our appellate courts, and in only a few has it been held that the question presented had resolved itself into one of law. In the majority of instances it has been held that the jury should pass on the facts and decide the question under proper instructions of the court. Illustrating, it was held in Southern Ry. Co. v. Covenia, 100 Ga. 46, 29 S.E. 219, 40 L.R. A. 253, 62 Am.St.Rep. 312, that the court would take judicial cognizance of the factthat an infant one year, eight months, and ten days old was incapable of rendering valuable services; while in Reid v. Moyd, 186 Ga. 578, 198 S.E. 703, it was decided that a precocious child, two and one-half years of age, would not, as a matter of law, be conclusively presumed to be so incapable. We call attention to the many cases bearing on the general question which are cited in the latter decision. In Atlantic Coast Line R. Co. v. McDonald, 135 Ga. 635(7b), 70 S.E. 249, 250, the statement is made: "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." And in Southern R. Co. v. Riley, 60 Ga.App. 475 (4), 4 S.E.2d 54, 55, is the statement: "The mother may still be dependent upon the child for support notwithstanding she may contribute to his support more in value than he contributes to her support." There are many other authorities which clearly indicate that except in unusual cases the decision of the question whether the plaintiff has brought herself within the terms of the Code section should be left to the jury even though the facts presented are not disputed.
Fuller v. Inman, 10 Ga.App. 680, 74 S.E. 287, 290, contains much valuable matter bearing on the general subject. In the opinion, painstakingly prepared by Judge Pottle, the history of the statute under consideration is reviewed and it is shown that it is in derogation of the common law and is to be strictly construed; also, that it was not until the act of 1887 that a parent could recover for the negligent homicide of a child; also, that the statute is "partly punitory and partly compensatory." Judge Pottle, among many other cases, cited Smith v. Hatcher, 102 Ga. 158, 29 S.E. 162, which held that it was essential that the parent should, at the time of the homicide, be "to a material extent dependent upon the [child] for a support, and that the child should then be actually contributing thereto." In the Smith case it is held that the word "or" in the section, after the word "dependent, " must be construed to mean "and." Also, "special attention is called to the use of the verbs 'is' and 'contributes' in the present tense, " and it is stated that the statute does not mean that the parent may recover for the homicide of a child on whom the parent has been dependent, or who might, at some future time, except for the homicide,...
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