Wilson v. Pollard

• Decision Date: 09 April 1940
• Docket Number: 13183.
• Citation: 8 S.E.2d 380,190 Ga. 74
• Parties: WILSON v. POLLARD.
• Court: Georgia Supreme Court

8 S.E.2d 380

190 Ga. 74

WILSON v. POLLARD.

No. 13183.

Supreme Court of Georgia

April 9, 1940

Syllabus by the Court.

1. A temporary administrator is authorized to maintain the suit provided for under the Code, § 105-1309.

2. Where a married woman living with her husband and receiving support from him, has an unmarried sister living in the house with her and performing all duties connected with housekeeping, but receiving food, lodging, and clothes from her or her husband, the value of which is less than her services, such married woman is dependent upon and receives contributions to her support from the sister, sufficient to authorize a recovery under the Code, § 105-1309.

3. Where the unmarried sister lives in like manner with another married sister and a brother, spending three months yearly with each sister and six months with the brother, recovery is authorized on behalf of each for the tortious homicide of such unmarried sister.

4. In order to authorize a recovery under the Code, § 105-1309 both dependency and contribution must exist.

The Court of Appeals certified the following questions:

'1. If a person is killed as the result of a tortious homicide and leaves no child, spouse, or dependent parent surviving may the temporary administrator of the deceased maintain a suit, under the Code, § 105-1309, 'for the benefit of the next of kin' who are dependent upon the deceased, or to whose support the deceased contributed? Reference is here made to this Code section as copied in question 2 following.

'2. Is a married woman who lives with and is supported by her husband, and who is the next of kin to her sister who lives in the house with the married woman and her husband, 'dependent' upon the sister, and does the sister contribute to the married woman's support, in the sense of dependency and contribution to support as provided in the Code, § 105-1309, which gives an administrator or executor of a decedent the right to recover for the benefit of the next of kin of the decedent, for the tortious homicide of the decedent, where such next of kin is 'dependent upon the decedent, or to whose support the decedent contributed,' where the sister lives at the home of the married woman three months each year and dies while living there, and while living in the home of the married woman the sister performs such services in the home and about the house and the premises as general housework, cooking, washing, ironing, sewing, sweeping the yard, working in the garden, and doing 'everything that goes with general housekeeping,' where the sister, while living in the home of the married woman, receives food, lodging, and clothing from the married woman or her husband, for which she pays nothing other than by the rendition of the services by her to the married woman, but where the services rendered by the sister are more valuable than the food, lodging, and clothing received by her? The Code, § 105-1309, reads as follows: 'In cases where there is no person entitled to sue under the foregoing provisions of this chapter, the administrator or executor of the decedent may sue for and recover and hold the amount recovered for the benefit of the next of kin, if dependent upon the decedent, or to whose support the decedent contributed. In any such case the amount of the recovery shall be determined by the extent of the dependency or the pecuniary loss sustained by the next of kin.'

'3. Where a person is dependent upon a sister who lives in the house with him, and the sister contributes to his support by reason of the rendition to him of services such as those performed by the sister, as narrated in question No. 2, in the sense of dependency, and contribution to support, which would afford him a right of action as next of kin for the tortious homicide of the sister, upon whom he is dependent and who contributes to his support, as provided in the Code, § 105-1309, is such a person dependent upon the sister, and does the sister contribute to his support in the sense of dependency and contribution to support as provided in the Code, § 105-1309, where at the time of the homicide of the sister she had moved away from the home and was not in fact performing such services, but where it had been her custom to live in the home for a part of the year, and to live in the home of other kin people and perform similar services for them another part of the year?

'4. Is it essential to a recovery for the benefit of the next of kin of a deceased person, for the latter's homicide, as provided in the Code, § 105-1309, that the next of kin must have been dependent upon the decedent, and that also the decedent must have contributed to the next of kin's support? Must there be both dependency by the next of kin and contribution by the decedent to the next of kin's support, or is it only required that there be either dependency by the next of kin upon the decedent or that the decedent contributed to the next of kin's support?'

Arnold, Gambrell & Arnold, of Atlanta, and Ernest M. Smith, of McDonough, for plaintiff in error.

Beck, Goodrich & Beck, of Griffin, and R. O. Jackson, of McDonough, for defendant in error.

DUCKWORTH Justice.

1. In determining whether or not the word 'administrator' in the Code, § 105-1309, embraces a 'temporary administrator,' it is important to consider the legislative purpose in enacting the law. No special rights are conferred upon the administrator or executor, nor is there imposed upon such administrator or executor a single duty or responsibility to be performed in a representative capacity. The sole purpose of the legislature in using the words 'administrator or executor' is to designate an agency for the prosecution of the suit thereby provided for. Manifestly there is no intention to involve the estate represented by such administrator or executor in the suit provided for in this section. Any recovery in such a suit is the property of the relative for whose benefit the suit is brought, and it at no time constitutes a part of the estate of the decedent. The defendant strongly emphasizes the fact that a temporary administrator is appointed in vacation on his application, without notice, and without approval of any of the heirs of the estate, and is empowered to collect and hold the assets of the estate without being authorized to pay out any funds belonging to the estate. Based upon these facts, it is contended that the competency and judgment required of the administrator in deciding whether or not he shall bring the suit provided for under the Code,§ 105-1309, has nowhere been considered and determined as is done with reference to a permanent administrator. The suit here involved places no responsible duties on the administrator, but simply identifies a person in whose name the suit must be maintained for the benefit of those entitled to recover under the act. It is not contended that the general law of this State with reference to a temporary administrator withholds from him the right to maintain a suit in behalf of the estate which he represents. That such temporary administrator is authorized to sue on behalf of the estate cannot be denied. Code, § 113-1511; Reese v. Burts, 39 Ga. 565; Mason v. Atlanta Fire Co., 70 Ga. 604, 48 Am.Rep. 585; Pollock v. Cox, 108 Ga. 430, 34 S.E. 213. The word 'administrator' as used in the statute is unrestricted and unlimited. It necessarily follows that any administrator is included, and therefore that a temporary administrator is a proper party to bring suit under the Code, § 105-1309.

2. The mere fact that there exists a legal duty of a husband to support his wife will not prevent the wife, although living with her husband who contributes to her support, from being dependent upon an unmarried sister who also contributes to her support, as contemplated under the Code, § 105-1309. In Daniels v. Savannah, Florida & Western Railway Co., 86 Ga. 236, 12 S.E. 365, it was held that a mother might recover for the homicide of her child, where the child contributed to her support and she was substantially dependent upon the child in part for support, although she was likewise dependent upon her husband and her own labor. See Richmond & Danville Railroad Co. v. Johnston, 89 Ga. 560, 15 S.E 908; Augusta Railway Co. v. Glover, 92 Ga. 132, 18 S.E. 406; Atlanta & Charlotte Air-Line Railway Co. v. Gravitt, 93 Ga. 369, 20 S.E. 550, 26 L.R.A. 553, 44 Am.St.Rep. 145; Georgia Railroad & Banking Co. v. Spinks, 111 Ga. 571, 36 S.E. 855; Atlantic Coast Line Railroad Co. v. McDonald, 135 Ga. 635, 70 S.E. 249; Reid v. Moyd, 186 Ga. 578, 198 S.E. 703. Where an unmarried sister lives in the house with the married woman and her husband three months each year, and while living in the home performs such services as general house work, cooking, washing, ironing, sewing, seeping the yard, working in the garden, and doing everything that goes with general housekeeping, receiving her food, lodging, and clothing from the married woman or her husband, for which she pays nothing, but where the value of her services is more than the value of her food, lodging, and clothing, there is dependency and contribution sufficient to support a recovery under the Code, § 105-1309, for the tortious homicide of the unmarried sister. Although the Court of Appeals begins question 2 with the statement that the married woman lives with and is supported by her husband, yet the question further recites the services rendered to the married woman by her unmarried sister, thus showing that the married woman is not in fact fully supported by her husband, but is also supported by the services of her unmarried sister. We have accordingly dealt with the question as if the opening statement therein does not mean entire support. Otherwise this...