Western & Atlantic Railroad v. Strong , 52 Ga. 461 ( 1874 )

McCay, Judge.

1. 2. This court, in 49 Georgia, 106, decided that the right of action for a homicide did not exist at common law, but depended for its existence on the law of the state where the homicide occurred. It is admitted that the homicide in this case occurred in Tennessee, and on the production of the law of that state, it appears that a right of action does exist for such a case, but that it is in the personal representative for the use of the wife and children. We are not prepared to say that, under our law, in the peculiar circumstances of this case, the wife and children, the entire beneficiaries, may not, in the absence of a representative, sustain the action. Courts of law, in this state, may do almost anything a court of equity might do; and in the case of a mere naked trust, a court of equity would, in the absence of a trustee, treat the beneficiaries as the parties at interest, and recognize their right to sue. But the wife is not the only beneficiary under the law of Tennessee. The wife and children are included. She has no right to sue alone. Whatever damages the company is liable for, belong to the children and the widow jointly. For this reason, if no other, there must be a reversal of the judgment in this case.

3. This is essentially an action for damages, an action based on a wrong, and is only ex contractu as all wrongs are. Either expressly or by implication all wrongs are a breach of contract, a violation of some express or implied undertaking to do or not to do certain things. People in civilized communities occupy certain relations to each other from which the law implies duties and obligations, and the breach of those duties or obligations is a tort — a wrong.

4. What those duties are depends in each on the peculiar facts of it. In the case of a homicide, the inquiry arises, what was the conduct of the parties; what relation did they have to each other; what obligation, by law, or by special contract, has either broken ? Our Code, under the .general head of “ Torts, or injuries to person or property,” defines a tort to be a legal wrong committed upon the person or property independent of contract, either: 1st, by the violation of some legal right of the individual. 2d, by the infraction of some public duty causing special damage to the individual. 3d, by the violation of some private obligation by which like damage accrues. By section 2954 it is said that private duties may arise either from statute or flow from relations created by contract, express or implied. Section 2955 declares that if the transaction partake of the nature of a tort and contract, the complainant may waive the one and rely upon the other. Here was no contract with the plaintiff. Her rights and the rights of her children turn on the statute by our Jaw: Code, 2971. By the law of Tennessee, as the right is given to the representative, it may be that some special rules as to the nature of the death, whether instantaneous or not, may arise; but we do not go into that subject, as it is not before us.

5. But by our law the right is given by statute to the wife generally for the “homicide” of her husband. Surely this does not cover every case of homicide. Cases of self-defense, of inevitable accident, of execution by command of the law, etc., must, from the nature of things, be excepted. And it seems to us that the true inquiry is: has the defendant violated any of the public or private obligations he was under to the deceased. Whether those obligations or duties were implied by law or existed by express contract is immaterial, but that some duty, public or private, was violated by the liomicide, would seem to follow from the very nature of a wrong, and from the principles of justice and equity. And our original act giving this action puts the right precisely on this ground, t-o-wit: whenever the husband, had he lived, would have had a right of action, then the wife has it, in case of his death : Act of 1850 ; Cobb’s Dig., 476.

6. In the case of the Western and Atlantic Railroad vs. Bishop, 50 Georgia, 465, we decided that the contract between an employee and the railroad, regulating the relative rights and duties of each, in so far as it did not condone any criminal act, was binding on both parties. And under the view we have taken of the rights of the wife, that she must show a violation of some duty the company owed to her husband, we think she is bound by the relations they had established between themselves by contract not illegal; that the wrong she sues for must be a legal wrong, a wrong which the law recognizes as a breach of some of the duties the road owed to her husband, that she stands in his shoes, has his rights and takes his responsibilies. Under these rules we think this verdict clearly wrong.

Judgment reversed.