Odom v. Atlanta & West Point Railroad , 78 Ga. App. 477 ( 1949 )

Code § 105-1302 makes no provision for the children of a deceased father to institute an action for his wrongful homicide while the widow of the deceased is still in life.

DECIDED JANUARY 21, 1949. Three minor children of Charles G. Odom, by next friend, sued the Atlanta and West Point Railroad Company to recover damages for the alleged wrongful homicide of their father. The petition alleged that the mother of the children died seven years prior to the filing of the action and that their father was married the second time to Mrs. Nannie Childs Odom, with whom, it was alleged; he was not living at the time of his death, and whose whereabouts were unknown to the children. The petition also alleged that shortly after the death of Charles G. Odom, the defendant railroad fraudulently settled whatever interest she may have had in the value of the life of the deceased by paying her $175, and that it also fraudulently settled insofar as they could the claims of the three minors and that it thereby perpetrated a fraud on said children. The petition also alleged that the defendant conspired, confederated and participated in a scheme with the said Mrs. Odom to deprive the children of their legal rights in the value of the life of their father, and that Mrs. Nannie Childs Odom was estopped by her wrongful conduct from bringing the action in behalf of the children. Various demurrers were filed. One demurrer was that the deceased left a widow and that the cause of action for the homicide vested exclusively in her. This demurrer was sustained, the others not being passed on, and the action dismissed. The plaintiffs except to that judgment. The rule in Bloodworth v. Jones, 191 Ga. 193 (11 S.E.2d 658), seems to control this case. It was there held that "the statute vests the right to sue in the first instance in the widow, and so long as she lives neither the children nor any one for them can institute such action." This court can not legislate an exception into the plain words of the statute. See Code, § 105-1302. The same case holds that "the statute makes no provision for a case where the widow declines to sue," and we submit that that ruling means where she declines to sue fraudulently or otherwise. Where the Supreme Court had a reason as compelling as the one presented here for deviating from the rule of strict construction, Watson v. Thompson, 185 Ga. 402 (195 S.E. 190), it adhered to the rule. The result is a harsh one as we see it but a correction of the injustice, if it is one, lies with the legislature which has either not been informed of the rulings or has by its inaction approved them.

There are two other contentions made by the plaintiffs in error which we feel called on to answer. It is contended that when the mother of the plaintiffs died the right to sue for their father's homicide vested in them. We do not agree with this contention. The right to sue for a homicide does not vest in any one until the homicide occurs. There is nothing we could add to that statement to improve on it. The next contention is that the word "widow" in the statute is used in the sense of "mother." Neither can we agree with this contention. The word widow is used to identify the person who was the wife of the deceased at his death and not to designate one according to her relationship to the children. Unwanted results may follow the death of one who has married the second time but that question also is one for the legislature and not the courts.

The court did not err in sustaining the demurrer and dismissing the action.

Judgment affirmed. Sutton, C. J., and Parker, J.,concur.