Williams v. Seaboard Air Line Ry. Co.

• Decision Date: 09 December 1924
• Docket Number: 15950.
• Citation: 125 S.E. 769,33 Ga.App. 164
• Parties: WILLIAMS ET AL. v. SEABOARD AIR LINE RY. CO.
• Court: Georgia Court of Appeals

125 S.E. 769

33 Ga.App. 164

WILLIAMS ET AL. v. SEABOARD AIR LINE RY. CO.

No. 15950.

Court of Appeals of Georgia, First Division

December 9, 1924

Syllabus by the Court.

Section 4424 of the Civil Code of 1910 provides that "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." This statute is in derogation of the common law and must be strictly construed. Georgia Railroad & Banking Co. v Wynn, 42 Ga. 332; Atlanta & West Point Railroad Co v. Venable, 65 Ga. 55; Denham v. Texas Co., 19 Ga.App. 662.

(a) The words "child or children" in the statute mean minor children only. Mott v. Central Railroad, 70 Ga. 680 48 Am.Rep. 595, and citations; Coleman v. Hyer, 113 Ga. 420, 38 S.E. 962; Griffith v. Griffith, 128 Ga 371, 57 S.E. 698. The contrary ruling by Judge Newman in Roberts v. Central of Georgia R. Co. (C. C.) 124 F 471, is in direct conflict with the construction of the statute as repeatedly given by the Supreme Court of Georgia, and will not be followed by this court. The amendment to this statute in 1887 (Ga. L. 1887, p. 43) shows no reason why the Supreme Court's construction of these words should be altered.

(b) A married child, although a minor, living with and supported by a husband, cannot be joined by her father in a suit brought by him for the homicide of his wife. See, in this connection, Georgia Railway & Power Co. v. Beale, 25 Ga.App. 364, 103 S.E. 434; s. c., 150 Ga. 774, 105 S.E. 447.

Actions for injuries to the person shall be brought within two years after the right of action accrues. Civil Code 1910, § 4497. (a) The provision of section 4379 of the Code that where there is a joint right of action, and some of the persons having such right are under disabilities, the statute of limitations shall not begin to run until the disabilities are removed, does not apply to a suit brought under section 4424 of the Code by a husband and minor children for the negligent homicide of the wife and mother. The right of action in such a case is solely in the husband (although he must join with him in the action the minor children of the deceased), and is not "a joint right of action" within the meaning of the statute. Statutes making exceptions to general rules must be strictly construed, and section 4379 of the Code provides for exceptions to the general rule of limitations to suits as enumerated in section 4497 of the Code. Moreover, where minors are seeking to toll the statute of limitations, their interest must be such as will enable them to maintain an action in their own name. Pendergrast v. Foley, 8 Ga. 1 (3); Worthy v. Johnson, 10 Ga. 358, 54 Am.Dec. 393; Wingfield v. Virgin, 51 Ga. 139 (1).

In the instant case, a husband brought suit against a railroad...