Southern Ry. Co v. Covenia

• Decision Date: 17 December 1896
• Parties: SOUTHERN RY. CO. v. COVENIA.
• Court: Georgia Supreme Court

29 S.E. 219

100 Ga. 46

SOUTHERN RY. CO.

v.COVENIA.

Supreme Court of Georgia.

Dec. 17, 1896.

Parent and Child—Loss of Services—Judicial Notice—Death by Wrongful Act— Measure of Damages.

1. Although the declaration stated facts showing the tortious killing of the plaintiff's child by the defendant, and alleged that the child "was a boy well formed, precocious, and of strong and robust physical powers for a child of his age; that he was physically sound in every respect, and was capable of rendering, and did render, to the plaintiff valuable services, by going upon errands to neighbors residing near to plaintiff's residence, picking up and bringing in coal and chips to make and keep burning fires in the house, bringing the broom and other articles used in house cleaning to his mother, picking up and carrying out of the house trash and litter which tended to render untidy in appearance plaintiff's home, watching and amusing plaintiff's younger child while his wife was engaged m cooking and attending to her household duties; and that these services were worth to the plaintiff the sum of two dollars per month, "—no cause of action entitling the plaintiff to recover for the child's services was set forth, it being also alleged in the declaration that the child was only 1 year, 8 months, and 10 days old. The allegations of the declaration should be construed all together, and the courts will take judicial cognizance of the fact that an infant of this age is incapable of rendering valuable services.

2. In such a ease, the father of the child killed is entitled to recover the expenses necessarily and reasonably incurred in the burial of the child, including compensation for the loss of such time on the father's part as was needed for this purpose.

Atkinson, J., dissenting.

(Syllabus by the Court.)

Error from city court of Brunswick; S. C. Atkinson, Judge.

Action by Sherman Covenia against the Southern Railway Company. A demurrer to the declaration was overruled, and defendant brings error. Affirmed.

Goodyear & Kay, for plaintiff in error.

Symmes & Bennett and Johnson & Krauss, for defendant in error.

SIMMONS, C. J. Whatever may be the rule in other jurisdictions, it is well settled in this state that the gist of an action by a parent to recover damages for the death or injury of a minor child is the loss of services. Shields v. Yonge, 15 Ga. 349; Allen v. Railroad Co., 54 Ga. 503. The loss of service being the cause of action, it follows that when the infant is incapable of rendering service at the time of its death or injury the parent cannot recover. This principle was recognized by the counsel of the plaintiff in the court below, for he alleged in the declaration that the child was capable of rendering service, and also specified what acts of service it did render, and the value thereof per month; but in the same declaration It was alleged that the child was but 1 year, 8 months, and 10 days of age. One of the grounds of the demurrer was that the plaintiff shows by his allegations in his petition that the child "was of such tender years as to be unable to have any earning capacity, and hence the defendant could not be held liable in damages for the killing of said child, even if negligently done." The question is, therefore, squarely made whether the court, on demurrer, can take Judicial cognizance of the fact that a child of this tender age is incapable of rendering such service as would authorize the parent to recover, or whether, in such a case, the court is bound to submit the matter to the Jury. In the case of Minnesota v. Barber, 136 U. S. 321, 10 Sup. Ct. 862, Mr. Justice Harlan said: "If a fact alleged to exist, upon which the rights of parties depend, is within common experience and knowledge, it is one of which the courts will take judicial notice." In Ho Ah Kow v. Nunan, 5 Sawy. 560, Fed. Cas. No. 6, 546, Mr. Justice Field said: "We cannot shut our eyes to matters of public notoriety and general cognizance. When we take our seats on the bench, we are not struck with blindness, and forbidden to know as judges w^That we see as men." In the case of King v. Gallun, 109 U. S. 99, 3 Sup. Ct. 85, it was held that "the court will take judicial notice of matters of common knowledge, and of things in common use." "Courts will take judicial notice of facts generally known as of uniform occurrence, or the invariable action of natural laws." 12 Am. & Eng. Enc. Law, p. 196. The fact that a child of less than 2 years of age cannot perform any services of value to its parent is a matter of common knowledge to all men. It is as well known to the judge as it is tc the jury. It being so known to the judge why should he not act upon it, when he is called upon to do so by proper pleading? Why is he less qualified than the jury to declare a well-known fact? Why should he submit such a question to a jury, when, if they found contrary to this well-known fact, he would be compelled to set aside their verdict? Why. should he go through the farce of a trial, at the expense of the country in time and money, in order to have a jury decide a fact which is already well known to every one? There is no necessity for a jury trial when there is no issue of fact. In our opinion, there can be no issue of...