Southern Railway Co. v. Covenia , 40 L.R.A. 253 ( 1896 )

i'Simmons, Chief Justice.

Whatever may be the rule in other jurisdictions, it is well settled in this State that the gist of an action by a parent to recover damages for th'e death or injury of a minor child is the loss of services. Shields v. Yonge, 15 Ga. 349; Allen v. Atlanta Street Railroad Co., 54 Ga. 503. The loss of service being the cause of action, it follows that when the infant is incapable of rendering service .at the time of its death or injury the parent can not recover. This principle was recognized by the counsel of the plaintiff in the court below, for he alleged in the declaration that the child was capable of rendering service, and also specified what acts of service it did render and the value thereof per month; but in the. same declaration it was alleged that the child was but one year, eight months and ten days of .age. One of the grounds of the demurrer was that the plaintiff shows by bis allegations in his petition that the child “was of such tender years as to be unable to- have any-earning capacity, and hence the defendant could not be held liable in damages for the hilling of said child, even if negligently done.” The question is, therefore, squarely made whether the court on demurrer can take judicial cognizance of the fact that a child of this tender age is incapable of rendering such service as would authorize the parent to recover, or whether in such a case the court is bound to submit the matter to the jury. In the case of Minnesota v. Barber, 136 U. S. 321, Mr. Justice Harlan •said: “If a fact alleged to- exist, upon which the lights of parties depend, is within common experience and knowl-' edge, it is one of which the courts will take judicial notice.” In Ah Kow v. Nunan, 5 Sawyer, 560, Mr. Justice Field •said: “We cannot shut our eyes to matters of public notoriety and general cognizance. When we take our seats on the betoch we are not struck with blindness, and forbidden to know as judges what we see as men.” In the case of King v. Gallun, 109 U. S. 99, it was held that “the court will take judicial notice of matters 'of common knowledge, and of things in common use'.” “Courts will take-judicial notice of facts generally known as of uniform oeeurreuce, or the invariable action of natural laws.” 12 Am. & Eng. Enc. of Law, p-. 196.

Hie fact that a child of less than two years of age cannot perforin any services of value to its parent is a matter of common knowledge to all men. It is as well known to- the-judge as it is to the jury. It being so known to the judge, why should he not act upon it when he is called upon to- do so by proper pleading? Why is he less qualified than the jury to declare a well known fact? Why should he submit such a question to a. jury when if they found contrary to-this well known fact he would be compelled to set aside-their verdict? Why should he go -through, the farce of a. trial, at the expense of the country in time and money, in order "to have a jury decide- a fact which is already well known to- every one? There is no necessity for a jury trial, when there is no- issue of fact. In our opinion there can he no issue of fact as to the -ability of a child two- years old to perform valuable sendees. Even if the- p-arent should testify that a child of that age could render services of the: value of two dollars per month, it would he so- inconsistent with every person’s knowledge of‘the incapacity of children of that age to render service, that such testimony would he unworthy of credit. In the case of Hall v. Hollander, 10 Eng. Com. Law Rep. 746, s. c. 4 Barn. & Cress. 660, Bayley, J., in discussing an injury to a child two and a half’ years old, said: “It is manifest that the child was incapable of performing any sendee'.”

All courts of any respectability, so far as I know, decide-as a matter of law that -children of tender years cannot be guilty of contributory negligence. Upon whalt- reason are these decisions made? Upon what theory do the courts-hold -this as a matter of law? The- answer is apparent. Because reason, experience and common sense teach that a. •child of that age has not the sense or 'the capacity to contribute to an injury to itself. It cannot ait that age be guilty of any negligence. If the courts can decide this as a matter of law, why can they noifc also decide as matter of law that such a child has no earning capacity? We see .no reason why it cannot be done. But it is contended that by the demurrer in the court below it was admitted that the child was capable of rendering service^ and that there•fore the conrt was right in overruling the demurrer. The • declaration enumerated certain services of the child which it alleged were worth two dollars per month. In passing upon a demurrer to a declaration, 'the court considers 'all the allegations therein. The demurrer admits all the facts well pleaded. If all the facts taken together show'that the plaintiff is not entitled to recover, the court should sustain the demurrer although some of the facts alleged would .show the measure and amount of the damages. If the .-major premise in the declaration shows no cause of action, the minor premise will not aid in sustaining it. The controlling fact alleged in this declaration was the age of the child, and consequently its incapacity to render service. We have shown that by reason of its tender age it could not perform service for the parent. Conceding for the sake of the argument that the fact alleged in the declaration ■that the child picked up chips, amused the baby, etc., was admitted by the demurrer, there was still no admission that these simple acts were of any value. The allegation in the declaration that they were valuable to the amount of two dollars per month was an opinion or conclusion of the ■pleader. It was necessarily an opinion or conclusion, because there was no standard by which services of this sort could be valued. We know as matter of fact that children of this age are- not hired or employed. There can, therefore, be m> criterion, by which the value of such services •could be estimated but that of ‘an opinion. It is well set-' •tied that a demurrer does not admit opinions or conclusions of the pleader. If a man, in ¡his action for personal injuries, alleges that he was damaged $10,000.00, and there is a demurrer to' the declaration, the demurrer does not admit the amount of damages claimed. Moreover, a demurrer does not admit facts which are in their nature improbable or impossible. In the ease of Cole v. Maunder, 2 Rolle’s Abridgement, 548, one person sued another for damages for throwing at and striking him with a stone. Defendant pleaded 'thiait he threw the stones at him molliler et molli mcmu and they fell upon him molliter, and it was held not a good justification, the judges saying that one cannot throw stones molliter although it were confessed by demurrer.

Suppose this child had been only six months old and these same allegations as to service and value had been made, it could not be held that a demurrer to the declaration admitted that the child six months old could render service. The allegation would have been improbable and impossible. Suppose that a boy five years old were indicted for the: crime of rape, all the necessary allegations being made, certainly a demurrer to. such an indictment would not admit that the boy did or could commit the offense charged.. Suppose again that one female should sue another for the ■ offense of seduction and the declaration contain all the nec- • essary allegations, would it be held th!at a demurrer by the • defendant would admit that she did commit the act neoes- ■ sary to constitute the crime? These illustrations are given for the purpose of showing that a demurrer to a declaration cannot be held /to admit impossible or improbable allegations of fact, so as to prevent the court from passing upon tilie allegations which in their nature are contrary to common experience and common knowledge as matter of law, and to compel him to submit them 'to a jury. "We. think, therefore, that the. court should have sustained the demurrer, in so far as to. hold that the parent could not ver cover damages for the death of the child on account of loss. of its services.

2. It is well settled, that although, a parent cannot recover damages for the death or injury of his child unless the child was capable of rendering service!, he can recover in an action against the person who inflicted the injury, for his -trouhle and expense in oaring for the child, and if it, dies from the injuries inflicted, he can recover his necessary and reasonable expenses in the burial, including oomp'enS'ation for the loss of such time on the parent’s part as was needed for this purpose. See Dennis v. Clark, 2 Cushing, 347, where this subject is elaborately discussed by Metcalf, J. We ‘'therefore hold 'that while the father in this, case cannot recover for the death of his child, he can recover for the expenses he incurred and the loss he sustained, ■rendered necessary by the conduct, of the servants of the-•railroad company, .and on 'this latter ground we affirm the judgment of the court below. If it is necessary, let this part of the declaration stand in order to try the amount of' expenses necessarily incurred by the father.

Jvdgmmt affirmed, with direction.