Augusta Factory v. Davis , 87 Ga. 648 ( 1891 )

Bleckley, Chief Justice.

1. After overruling the demurrer to the declaration the judge, in the exercise of his discretion, and having doubts in his own mind of the correctness of his ruliug on the demurrer, ordered the case to be withdrawn from the jury. This was done for the avowed purpose of giving the defendant an opportunity to bring the case to this court ou writ of error in advance of a trial by jui’y ou the issues of fact-. Though it was in the power of the court to suspend the trial, there was no duty incumbent upon it to do so. The defendant might have entered exceptions pendente Lite to the decision overruling the demurrer. Bradley v. Saddler, 54 Ga. 681. Or without excepting pendente lite, the question on the demurrer alone could have been brought here by regular bill of exceptions after the trial was over and a recovery had by the plaintiff. Lowe v. Burke, 79 Ga. 164 ; and see Kitchens v. The State, 80 Ga. 810. Or after a mistrial. Central R. Co. v. Denson, 83 Ga. 267. But it was not necessary that the trial should proceed any further after the demurrer was overruled, in order to render the judgment on the demurrer reviewable here. City Council of Augusta v. Lombard, 86 Ga. 165, 12 S. E. Rep. 212.

2. The plaintiff’s daughter was 15 years of age, and was injured on the 8th day of January, 1890. She survived until the 24th day of the same mouth, when she died of her injvu’ies. The action is for the loss of her labor and services, and for expenses incurred in her last illness, death and burial. The negligence of the defendant which caused the injury and consequent death was in furnishing unsafe machinery for the child to work with, she being in the employment of the defendant as a laborer in its cotton mill. This negligence was a tort and the death resulted from it. The plaintiff, according to all the better authorities, would be entitled to recover the necessary expenses incurred by him in consequence of it, and also compensation for the loss of the labor and services of his minor daughter from the time she was disabled by the injury until she died. 2 Thompson on Negl. 1272 and notes; 3 Lawson, Rights, Rem. & Pr. §1016.

3. This action not being for the homicide of the daughter but for the tort of which . the homicide was only a consequence, and the gist of.the suit being the loss of labor and services, the' right of action was altogether independent of the act of October 27th, 1887, and the recovery would embrace damages for the loss of services of the daughter from the time of the injury until she would have been 21 years of age, according to the ruling of this court in McDowell v. Georgia R. R., 60 Ga. 320. Inasmuch as one and the same tortious act may cause separate and distinct damage to two persons, as for instance to master and servant (Smith on Master & Serv. *173), it is not easy to see how the scope of the father’s damage as recognized prior to the act of 1887, would be contracted by the right of action given by that act to the mother, even whei’e the conditions are such as to entitle the mother to sue and recover for the homicide. Her damages are arbitrarily measured by the statute at the full value of the life of the child, but this is not necessarily inconsistent with the duty on the part of the wrong-doer of compensating the father, on the basis of the prior law, for the damages sustained by him in the loss of the child’s services up to the period of majority, in so far as those services would have been of value to him. The tort, with the homicide as an incident, might be treated as furnishing a cause of action to the father, and the homicide itself as furnishing a cause of action in behalf of the mother. In prescribing a measure of recovery for the latter, the legislature could make the value of the life the standard, without changing or intending to change the measure of recovery for the former. It does not appear, however, that the child now in question left any mother, nor was it needful that the declaration should disclose anything on that subject, the present action not being founded on the act of 1887 but on tbe prior law. The contention that the prior law has been abrogated by implication is not sustainable, though it is doubtless true -that a father when himself entitled to sue under the new act would have to elect between the remedy which it affords and the more restricted remedy afforded by the law as it stood before the act was passed. He could not sue severally for the homicide and for 'the original tort from which the homicide resulted, and recover in both actions. ■ Judgment affirmed.