Thompson v. Georgia Ry. & Power Co.
| Decision Date | 14 January 1927 |
| Docket Number | 5439. |
| Citation | 136 S.E. 895,163 Ga. 598 |
| Parties | THOMPSON et al. v. GEORGIA RY. & POWER CO. |
| Court | Georgia Supreme Court |
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.
Words "child or children," used in Acts 1887, p. 43; Acts 1855-56, p. 155; Acts 1878-79, p. 59; Civ. Code 1910, p 4424; Codes 1873 and 1882, § 2971; Code 1863, § 2913, giving children right of action for homicide of parents, mean minor child or children.
[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Child-Children.]
Under Civ. Code 1910, §§ 554, 3020, father is primarily charged with duty of providing maintenance and education of child until majority, and on death of father duty devolves on mother, if she has ability and infant child is without means and unable to earn maintenance.
Under Civ. Code 1910, § 3021, parent's duty to support child and right to custody and services of child are reciprocal.
Under Civ. Code 1910, § 3021, right of parent to services and proceeds of labor of minor child is lost whenever child, with consent of parent, marries.
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.
Reuben R. & Lowry Arnold and R. B. Blackburn, all of Atlanta, for plaintiffs in error.
Colquitt & Conyers, of Atlanta, for defendant in error.
1. Can an adult child, under the act of October 27, 1887 (Acts 1887, 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, as to what children could recover for the homicide of the parent if there were no widow. In the case of Macon & Western Railroad Co. v. Johnson, 38 Ga. 409, 433, it was held that this provision "was intended only to give to the wife damages for her loss, or, if no wife, then to the children, for their loss," and that the loss of the wife was that which she was, by law, entitled to from her husband; that is, a reasonable support according to his condition in life. In David v. Southwestern Railroad Co., 41 Ga. 223, it was held that the same rule ought to be applied when the children sue, and that:
"The measure of damages in such a case, is the present worth of a reasonable support for them during minority, according to the expectation of the father's life, in view of his condition of life, prospects, industry," etc.
By the act of December 16, 1878, which amended section 2971 of the Code of 1873, it was provided that in case of suits for the homicide of the husband or parent, either the widow or children, as the case might be, were entitled to recover the full value of the life of the deceased. Acts 1878-79, p. 59. In other words, by this act the Legislature fixed the measure of damages which the widow or children could recover as compensation for their losses arising from the homicide of the husband or parent, and this measure was the full value of the life of the deceased. This act did not in any way change the theory upon which compensation was given to the widow or children for the homicide of the deceased husband or parent, as announced in the decisions above referred to. There then arose a question as to the meaning of the language, "child or children," appearing in section 2971 of the Code of 1882. In Mott v. Central Railroad, 70 Ga. 680, 48 Am.Rep. 595, this court held that the right of action conferred by this section was confined to a minor child or minor children, and that an adult son could not sue for the homicide of his father. The decision in that case was based upon the proposition that, as a father was bound for the support of his minor children, the Legislature intended to compensate them for the loss of their father, and did not contemplate the award of damages to adult children whom the father was under no obligation to support. This theory was not deducible from any express language in the statute which this court was construing, but was based upon the supposed purpose of the Legislature in enacting that statute. In that case this court defined the meaning of the terms "child or children," and held that child meant minor child, and that children meant minor children. This decision was rendered on April 24, 1883.
By the act of October 27, 1887, section 2971 of the Code of 1882, as amended by the act of December 16, 1878, was amended by adding the following provision:
"The husband may recover for the homicide of his wife, and if she leave 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." Acts 1887, p. 43.
It will be noted that the act of 1887 was not an independent and distinct act, but was an amendment to section 2971 of the Code of 1882, as amended by the above act of 1878. This act was not necessary in order to enable minor children to recover for the homicide of their mother under said section of the Code, because this court had held in Atlanta & West Point Railroad Co. v. Venable, 65 Ga. 55 that this section gave a right of action to minor children for the homicide of their mother, and did not restrict their right to a recovery for the homicide of their father. Is the right given to adult children to recover for the homicide of their mother under the act of 1887? Prior to the passage of that act, the husband could not recover for the homicide of his wife. Her minor, dependent children alone could sue for her homicide. The main purpose of the act of 1887 was to give the husband the right to recover jointly with her children for the homicide of his wife. The only effect of this act so far as children are concerned, is to lessen the amount which they could recover for the homicide of their mother, as under this act the full value of the life of the wife was to be shared by the husband and children jointly. In this amendatory act of 1887, and in defining therein what children could recover, jointly with the husband, for the homicide of the wife, the Legislature...
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