Central of Georgia Railway Co. v. Swann , 1917 Ga. App. LEXIS 310 ( 1917 )

George, J.

The act of 1887 (Acts 1887, p. 45), codified in section 4434 of the Civil Code (1910), provides that “A mother, or, if no mother, a father, may recover for the homicide of a child minor or sni juris, upon -whom she or he is dependent, or who contributes to his or her support, unless said child leave a wife, husband, or child.” The language of this statute is that the recovery may be had either when the parent is dependent or when the child contributes to the parent’s support, but it is settled, both by the decisions of the Supreme Court and of this court, that, in order to authorize a recovery, there must have been both dependency and contribution to the parent’s support. In the case of Clay v. Central R. Co., 84 Ga. 345 (10 S. E. 967), it was held that “the legislature did not intend to give to a mother or father, under the circumstances stated, the right to recover for the homicide of a child, unless the mother or father was dependent upon such child for a support and such deceased child contributed to the support or maintenance of the mother or father;” and it. was accordingly there ruled that the disjunctive “or,” as used in this clause of the act, should be read as “and.” This act was given the same construction in Smith v. Hatcher, 103 Ga. 158 (39 S. E. 163), in Augusta Southern Railroad Co. v. McDade, 105 Ga. 134 (7), 138 (31 S. E. 430), and in many other decisions of the Supreme Court. Although'in each code adopted since the passage of that act the legislature has continued to use the disjrmctive “or” as it appeared in the original act pf 1887, the courts of this State have continued to read the conjunctive “and” into the statute. Compare Fuller v. Inman, 10 Ga. App. 680 (74 S. E. 287).

It is well settled that the statute with which we are now dealing, being in derogation of the common law, must be strictly construed. The act is partly punitory and partly compensatory, according to the opinion by Mr. Justice Lumpkin in Georgia Railroad & Banking Co. v. Spinks, 111 Ga. 571 (36 S. E. 855). However, the statute seems to be mainly compensatory. Indeed, this doctrine is fixed in the law of this State, and must have influenced the court in declaring that the legislature meant to use the conjunctive “and” where the disjunctive “or” appears in the statute.

While, in a suit by a mother for the tortious homicide of her minor son, it is necessary to prove both dependence and material contribution to the support of the mother, it is equally well settled that this dependence may be either total or partial, and that the contribution to her support may be either in full or only in part. Since the decision delivered by Chief Justice Bleckley in the ease of Augusta Railway Co. v. Glover, 93 Ga. 133 (18 S. E. 406), it has been recognized in this State that contribution by a child to a common stock out of which the family is supported constitutes such partial dependence and substantial contribution as will authorize the mother to recover for his negligent homicide, although the father be alive and able to labor. See Fuller v. Inman, supra; City of Thomasville v. Jones, 17 Ga. App. 635 (87 S. E. 933). In the present case the mother testified as follows: “He [the son] gave his money to me, and I used it for the family to help support the family. . . Of course, I needed the child’s money. . . I needed the boy’s money to assist us in the support of the family, because we had a right large family, and I needed it to help support the family.” It appears that the husband, who was a guard at the State convict camp, earned $45 per month, but that when he was unable to labor a proper deduction was made for his lost time. The evidence discloses that the deceased was a bright boy, and was fourteen years old at the time of his death, and that prior to his death he was earning $15 a month by his labor, beyond the services directly performed for the mother. His monthly earnings were delivered to the mother and were by her used to help support the family. The court clearly and repeatedly instructed the jury that, before the mother could recover, it must appear, by a preponderance of the evidence, both that she was dependent upon her deceased son and that he substantially and materially contributed to her support. The instructions to which exceptions are taken here did not confuse the jury, and the evidence is sufficient to sustain their verdict, and the verdict is not excessive.

The petition alleged that the defendant company was negligent in failing to secure or fasten the rear door of the coach on which the plaintiff’s minor son was riding as a passenger, and in leaving this rear door open without chains or other protection to keep any one from falling from the coach, and in disconnecting the coaches immediately attached to the coach in which he was riding, without notice, or warning to him, and in negligently locking and fastening the closet door in the rear end of the coach in which he was riding, and in running its train at a high and reckless speed, giving it a violent' lnrcli when he was attempting to pass from the coach in which he was riding to the coaches which he supposed to be in the rear, it being, for reasons set forth in the petition, necessary for him to do so. No one saw him as he went out of the rear door of the coach. The facts and circumstances in the record are sufficient to authorize the jury to conclude that he did pass out of the rear door of the coach in which he was riding, and that he was killed by the operation of the defendant’s train. The defendant offered no evidence. The presumption that the company was guilty of the acts of negligence specifically alleged in the petition is sufficient to authorize.the recovery. Compare Ga. S. & F. Ry. Co. v. Thornton, 144 Ga. 481, 484 (87 S. E. 388). The court did not err in overruling the motion for a new trial, and the judgment is therefore

Affirmed.

Wade, O. J., and Luke, J., concur. .