Rogers v. Hime , 76 Ga. App. 523 ( 1948 )

1. Before the personal representative of a deceased person can recover in a suit brought on behalf of the next of kin. for a homicide. it must be alleged and proved that the deceased contributed to the support of the person for whom the suit is brought, and that such person was dependent on the deceased. Both dependency and contribution are prerequisite to recovery. Code, § 105-1309; Clay v. Central Railroad Banking Co., 84 Ga. 345 (10 S.E. 967); Kent v. Consumers Co., 47 Ga. App. 213 (170 S.E. 202).

2. In order to entitle a brother to recover for the wrongful death of a deceased brother, contribution must have been made to such brother by such deceased brother, and he must be dependent upon such deceased brother to some extent for such contribution at the time of the death of the deceased. See Western Atlantic R. v. Anderson 34 Ga. App. 435 (129 S.E. 896); Fuller v. Inman, 10 Ga. App. 688 (74 S.E. 287); Wilson v. Pollard, 190 Ga. 78 (8 S.E.2d 380).

3. The burden of proof being upon the plaintiff the evidence must affirmatively show that the incomes of the alleged dependents, being two brothers and a sister, are not sufficient to adequately support them. before they are entitled to recover for the homicide of their brother. See Ga. Railroad Banking Co. v. Spinks, 111 Ga. 571 (36 S.E. 855); Atlantic Coast Line R. Co. v. McDonald, 135 Ga. 636, 7 (a) (70 S. E 249).

4. The evidence was not sufficient to authorize a finding that any one of the three for whose benefit the suit was brought was dependent in any measure upon the deceased for support at the time of the death of the deceased. Therefore the judgment granting a nonsuit was without error This decision renders the order of the judge overruling the demurrers interposed by the defendant moot, and a decision thereon unnecessary. Therefore the cross-bill of exceptions is dismissed.

This case was considered and decided by the whole court. Judgment affirmed on the main bill of exceptions; cross-bill dismissed. Sutton, C. J., MacIntyre, P.J., Felton, Gardner, and Parker, JJ., concur .

DECIDED FEBRUARY 5, 1948. REHEARING DENIED FEBRUARY 19, 1948. B. R. Rogers, to whom we shall refer as the plaintiff, brought a suit under Code § 105-1309, in the Superior Court of Gordon County, as administrator of the estate of Thomas Rogers, deceased, against Gilbert Hime, to whom we shall refer as the defendant. The petition alleged in substance: Thomas Rogers, the deceased, met his death as the result of the negligent operation of an automobile by the defendant the petition detailing the acts of negligence relied upon by the plaintiff Rogers was an unmarried man, and died leaving no child or children or dependent parents surviving. This action was brought for the benefit of Mrs. Minnie Hawkins, F. H. Rogers and W. N. Rogers sister and brothers of the deceased, to whom the deceased contributed, and who were dependent upon him for such contributions amounting to $100 per month.

On the trial the evidence disclosed that the persons for whose benefit the suit was brought were the sister and brothers as alleged, and that the deceased made certain contributions to them up to the time of his death. From the evidence the jury also would have been authorized to find that the deceased met his death as the result of negligence of the defendant as alleged in the petition. There is no evidence in the record, however, that would have authorized a finding that either Mrs. Hawkins or F. H. Rogers was in any measure dependent upon the deceased at any time prior to his death. Under the testimony of W. N. Rogers, a finding in favor of his dependency would have been authorized up to March before the deceased was killed in October, at which time W. N. Rogers lent the deceased $1200. According to W. N. Rogers' own testimony y he was not to any extent dependent upon the deceased at the time of his death, and had not been since March of the same year. Mrs. Hawkins and F. H. Rogers, the other two for whose benefit the suit was brought , did not testify, and no evidence in the record was sufficient to authorize a finding that they were dependent upon their brother at the time of his death to such extent as would authorize a recovery in their behalf under Code § 105-1309.

After the plaintiff had introduced his testimony on the trial and rested, counsel for the defendant moved for a nonsuit, which was granted. This order and judgment the plaintiff assigns as error. The defendant interposed certain demurrers, which the judge overruled, and to this ruling exceptions pendente lite were taken. The order overruling these demurrers is, by cross-bill of exceptions, assigned as error. However, the decision of this court herein renders moot the ruling of the trial judge on these demurrers, and a decision thereon by this court unnecessary.