Smith v. Hatcher

• Decision Date: 04 August 1897
• Citation: 102 Ga. 158,29 S.E. 162
• Parties: SMITH et al. v. HATCHER.
• Court: Georgia Supreme Court

29 S.E. 162

102 Ga. 158

SMITH et al.

v.HATCHER.

Supreme Court of Georgia.

Aug. 4, 1897.

Death of Child—Rights of Parent.

1. 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.

2. Accordingly, where a son, while serving a term as a penitentiary convict, was unlawfully killed, but at the time of his death was not actually contributing to his father's support, the latter could not recover for the homicide.

3. The plaintiff's action ought to have been dismissed on demurrer.

(Syllabus by the Court.)

Error from superior court, Bartow county; T. W. Milner, Judge.

Action by Andrew J. Hatcher against James M. Smith and others. A demurrer to the complaint being overruled, defendants bring error. Reversed.

John L. Hopkins & Son and David W. Meadow, for plaintiffs in error.

John W. Akin, Fouche & Fouchfi, and A. S. Johnson, for defendant in error.

LUMPKIN, P. J. An action was brought by Andrew J. Hatcher against James M. Smith and others for the alleged unlawful homicide of the plaintiff's son, Edward Hatcher. The petition was filed June 23, 1896, and made, in substance, the following case: The plaintiff's sonwag convicted of a felony, was sentenced to a term of five years In the penitentiary, and, on or about the 8th day of December, 1894, delivered to the defendants by the principal keeper of the penitentiary for confinement and labor, as provided by law. In consequence of the defendants' negligence, he was killed on the 3d day of February, 1896. His sentence, if he had lived, would have expired on or before December 1, 1899. This son had never married, and, at the time of his death, the plaintiff was a widower. The deceased "contributed to petitioner's support, " and "petitioner was dependent upon his said son for support." "Said Edward Hatcher was, before his imprisonment, earning the sum of two dollars per day, and would have been capable of earning that amount, or more, after his imprisonment was over." The defendant Smith demurred to the petition on various grounds, one of which was that no cause of action was set forth. His demurrer being overruled, he excepted.

It will be observed that the petition does not allege that the plaintiff's son was, at the time of the homicide, actually contributing to the plaintiff's support. The phrase, "contributed to petitioner's support, " construed in connection with the other allegations of the petition, manifestly means that the deceased son had, before his confinement in the penitentiary, contributed to the father's support. Taking these allegations all together, he could not be doing so while engaged in his labors as a convict. The petition must therefore be taken to mean that the contribution by the son to the father's support was something which related to the past; and also that there was an expectation on the parent's part that such contribution would...