Thompson v. Ga. Ry. &. Power Co, (No. 5439.)

• Decision Date: 14 January 1927
• Docket Number: (No. 5439.)
• Court: Georgia Supreme Court
• Parties: THOMPSON et al. v. GEORGIA RY. &. POWER CO.

163 Ga. 598

136 S.E. 895

THOMPSON et al.
v.
GEORGIA RY. &. POWER CO.

(No. 5439.)

Supreme Court of Georgia.

Jan. 14, 1927.

Rehearing Denied Feb. 18, 1927.

(Syllabus by the Court.)

An adult child cannot recover for the homicide of his widowed mother, which took place prior to the act of August 18, 1924 (Acts 1924, p. 60), under section 4424 of the Code of 1910.

A minor married son, who at the time of the homicide of his widowed mother was living with her, cannot recover for her homicide which occurred prior to the act of August 18, 1924 (Acts 1924, p. 60), where it does not appear whether he was, in fact, dependent upon his mother for support.

(Additional Syllabus by Editorial Staff.)

Russell, C. J., dissenting.

Certified Questions from Court of Appeals.

Action by Roy Thompson and others against the Georgia Railway & Power Company. On certified questions from Court of Appeals. Questions answered.

The Court of Appeals certified the following questions, a determination of which is necessary for a decision of this case:

(1) The act of the General Assembly of the state of Georgia, approved October 27, 1887 (Ga. L. 1887, p. 43), which is, in part, codified in section 4424 of the Civil Code (1910), in part, reads as follows: "The husband may recover for the homicide of his wife, and if she leaves child or children surviving, said husband and children shall sue jointly and not separately, with the right to recover the full value of the life of the deceased, as shown by the evidence, and with the right of survivorship as to said suit if either die pending the action." Can an adult child, by virtue of the terms of this act, or otherwise, recover for the homicide of its widowed mother? See, in this connection, the opinion of Judge Newman of the United States District Court for the Northern District of Georgia, in Roberts v. Central of Georgia Ry. Co. (C. C.) 124 F. 471, 473.

(2) If the right of recovery by a child for the homicide of a widowed mother is restricted to a minor child of the deceased, is there a right of recovery for such homicide by a minor son who at the time of the homicide was married and was living with his mother, where it does not appear

[136 S.E. 896]

whether he was, in fact, dependent upon his mother for support? See in this connection, Beale v. Georgia Ry. & Power Co., 150 Ga. 774 (105 S. E. 447); Georgia Ry. & Power Co. v. Beale, 25 Ga. App. 364 (103 S. E. 434); Williams v. Seaboard Air Line Ry. Co., 33 Ga-App. 164, 125 S. E. 769.

Reuben R. & Lowry Arnold and R. B. Blackburn, all of Atlanta, for plaintiffs in error.

Colquitt & Conyers, of Atlanta, for defendant in error.

HINES, J. [1, 3] 1. Can an adult child, under the act of October 27, 18S7 (Acts 18S7, p. 43), or otherwise, recover for the homicide of its widowed mother? The applicable portion of this act, as codified, reads as follows:

"The husband may recover for the homicide of his wife, and if she leaves child or children surviving, said husband and children shall sue jointly and not separately, with the right to recover the full value of the life of the deceased, as shown by the evidence, and with the right of survivorship as to said suit if either die pending the action." Civil Code 1910, § 4424.

The answer to the above question, which in substance is the first question propounded by the Court of Appeals, depends upon the proper construction of the language, "child or children, " as used in the statute. In construing this language, must we give to the term "child" its generic meaning, that is, a male or female descendant within the first degree, or must we give it a limited and specific meaning, confining it to a minor child or children? The Code of 1863, § 2913, provided that:

"A widow, or if no widow a child or children, may recover for the homicide of the husband or parent."

This section was codified from the acts of 1850 and 1856. Cobb's Digest, 476; Acts 1855-56, p. 155. That provision was carried forward into the Codes of 1873 and. 1882 as section 2971. It soon came before this court for construction in two respects; first, as to the amount of damages which the widow or children could recover for the homicide of the husband or parent; second...