Smith v. East & West R. Co. Of Ala.

• Decision Date: 08 January 1890
• Citation: 10 S.E. 602,84 Ga. 183
• Court: Georgia Supreme Court
• Parties: Smith et al. v. East & West R. Co. of Alabama.

10 S.E. 602

(84 Ga. 183)

Smith et al.

v.East & West R. Co. of Alabama.

Supreme Court of Georgia.

Jan. 8, 1890.

Action for Death or Child—Pleading.

The action being by a mother against a railroad company for causing the death of her minor son, and the declaration counting apparently on the homicide, and not on the loss of service, as the grievance to be redressed, and there being no claim of right in the mother to the son's service or to recover hire for the same, the court below was justifiable in treating the declaration as not amendable, and in dismissing the action. (Syllabus by the Court.)

Error from superior court, Polk county; Maddox, Judge.

J. B. Conyers and E. N. Broyles, for plaintiffs in error. Ivy F. Thompson, for defendant in error.

Bleckley, C. J. The most that can be said against the judgment of the court below is that it is somewhat doubtful. The error, if any, committed, is not so apparent as to justify a reversal of the judgment. Certainly the fair and natural construction of the declaration is that it sought a recovery, not for loss of service due to the mother from her minor son, but for the homicide of the son, as a cause of action. It is only upon this theory that much of the contents of the declaration can be accounted for. "Your petitioner, Lucy Smith, shows that the death of her said son, untimely and sudden as it was, was a very great shock to her, and her mental anguish and suffering was very great, indeed, when she learned that her said son could be with her no more alive on this earth. Your petitioner, as well as her present husband, are now growing old, and they hoped to be able to raise said son to be a useful man, and that he would be able from his earnings to take care of and support your petitioners in their declining years, but these anticipations have been blighted by his sudden death as aforesaid. * * * Your petitioners allege that the death of said William Smith, caused by the gross carelessness, and reckless and criminal negligence, of defendant, as aforesaid, is the way in which your petitioners have beendamaged in the sum of twenty thousand dollars aforesaid." It seems to us that the natural import of this language is that the grievance complained of is not the loss of service, but the loss of the son. All that was said in the declaration touching service was this: " Your petitioners' said son had been employed on said Cherokee Railroad for some considerable time in all, and was faithful to his duty; was worth at...