1. In an action brought jointly by a husband and his only minor child, to recover damages for the alleged tortious death of the wife and mother of the parties respectively, where the negligence of the husband and the defendant combined to proximately cause the death of the wife and mother, who could not have avoided the consequences of the negligence of her husband and the defendant, and who was in no wise guilty of any negligence, a recovery as to both of the plaintiffs is not barred by the negligence of the husband, where his negligence is equal to or greater than the defendant's.
2. A recovery under such circumstances is barred as to the husband.
3. In such a case, the child is not entitled to recover the full value of the life of its mother.
4. Where the husband's negligence is less than the defendant's, both plaintiffs are jointly entitled to a verdict for the full value of the life of the wife and mother, diminished in proportion to the husband's negligence, unless by the exercise of ordinary care the husband could have avoided the consequences of the defendant's negligence; the husband's and the child's portion, however, to be separately stated in the verdict, the child's part not to be less than half the value of the mother's life.
5. In such a situation, the amount of recovery to which plaintiffs are entitled is apportionable between the husband and the child, the child's part being one half of the value of the life of the wife and mother, and the husband's half of such value diminished in proportion to his negligence, the husband's right to a portion of a recovery being subject to the provisos, first, that his contributory negligence is less than that of the defendant; and second, that he could not by the exercise of ordinary care have prevented the homicide of his wife.
No. 13815. SEPTEMBER 26, 1941.
The Court of Appeals (in case No. 28930) certified the following questions: In an action brought jointly by a husband and his only minor child, to recover damages for the alleged tortious death of the wife and mother of the parties respectively, where the negligence of the husband and the defendant combined to proximately cause the death of the wife and mother, who could not have avoided the consequences of the negligence of her husband and the defendant, and who was in no wise guilty of any negligence:
1. Is a recovery as to both of the plaintiffs barred by the negligence of the husband, where his negligence is equal to or greater than the defendant's?
2. If the first question is answered in the negative, is a recovery barred as to the husband?
3. If the first question is answered in the negative and the second in the affirmative, is the child entitled to recover the full value of the life of the mother?
4. Where the husband's negligence is less than the defendant's, are both plaintiffs jointly entitled to a verdict of the full value of the life of the wife and mother, diminished in proportion to the husband's negligence?
5. If the fourth question is answered in the negative: if the husband's negligence is less than the defendant's, is the amount of recovery to which plaintiffs are entitled apportionable between the husband and the child, the child's part being one half of the value
of the life of the wife and mother, and the husband's half of such value diminished in proportion to his negligence?
The right of the husband and children to bring a suit for the homicide of the wife and mother is based on the provisions of the Code, § 105-1306, as follows: "The husband may recover for the homicide of his wife; and if she leaves child or children surviving, the husband and children shall sue jointly and not separately, with the right to recover the full value of the life of the decedent, as shown by the evidence, and with the right of survivorship as to said suit, if either shall die pending the action." The right to recover, however, must be determined in part by the rule which in effect declares that no plaintiff can recover when his own negligence contributing to the injury or death equals or exceeds that of the defendant. CentralRailroad Banking Co. v. Newman, 94 Ga. 560 (21 S.E. 219);Southern Railway Co. v. Watson, 104 Ga. 243 (30 S.E. 818);Willingham v. Macon Birmingham Railway Co., 113 Ga. 374
(38 S.E. 843); Georgia Florida Railway v. Newton,140 Ga. 463 (79 S.E. 142). Also there should be borne in mind the principle that joint tort-feasors may be sued separately, each being severally liable. Code, § 105-1207; Mashburn v.Dannenberg Co., 117 Ga. 567 (13), 582 (44 S.E. 97). CompareWometco Theatres Inc. v. United Artists Corporation, 53 Ga. App. 509,513 (186 S.E. 572), and cit. Giving effect to the foregoing, it seems fairly plain that in the situation outlined in the first question submitted it was correctly assumed by the Court of Appeals that there can be no recovery by the husband. Counsel for defendants in error insist that we should rule that although the negligence of the husband may have been equal to or greater than the negligence of the defendant, a recovery should be had for the full value of the life of the wife, unless the defendant on the trial of the case pleads the negligence of the husband in diminution of the amount of damages. However, we must decline to enter into that field of inquiry, since the question propounded does not bring it within its purview, our opinion being sought only as to the substantive law as to the effect of the husband's contributory negligence on the right of a recovery, and not as to the pleading necessary to avail the defendant of its rights in the premises.
We are not here dealing with the contributory negligence of a custodian of a child as affecting the right of the parent to recover for its death or injury, as was the case of Atlanta Charlotte Airline Ry. Co. v. Gravitt, 93 Ga. 369
(20 S.E. 550, 26 L.R.A. 553, 44 Am. St. R. 145), on which subject an annotation may be found in 23 A.L.R. 649, 655, in connection with the report of the case of Union Traction Co. v. Gaunt,193 Ind. 109, 135 N.E. 486, or with the related question as to the effect of contributory negligence of the parent as a bar to an action by the parent or administrator for death of the child. As to this, see Stamps v. Newton County, 8 Ga. App. 229
(68 S.E. 947), and the note in 23 A.L.R. 661, 670, to Town of Flagstaff v. Gomez, 23 Ariz. 184 (202 P. 401). In theStamps case, supra, the suit was not by an administrator, but by the mother who sued both for the value of the child's life and the value of its services. In that case the Court of Appeals held: "In refusing to strike that portion of the defendant's plea which set up that the death of the plaintiff's child was the fault of the plaintiff herself in negligently and carelessly permitting the child to pass over the foot-bridge without the guidance of some other person, well knowing that the stream at that time was very much swollen and in a dangerous condition, and that the plaintiff aided and contributed to her own injury by allowing the child to enter upon said foot-bridge without some other person to guide the child and prevent her from falling, the court did not err, inasmuch as the defendant had the right to introduce evidence to show, if it could, that the mother was present, or at least in sight, at the time the child was drowned." In Kokesh v. Price, 136 Minn. 304 (161 N.W. 715), it was said: "The serious question in the case is whether, in view of the negligence of Kokesh, he as administrator can be permitted to recover a verdict for the benefit of himself and children." The Minnesota court ruled as follows: "In this case there were three beneficiaries, the husband and two children. The husband alone was negligent. The question presented by this record is whether the contributory negligence of the husband barred all recovery by himself as administrator. Partial reduction, to the extent of the share he may receive as beneficiary, was not asked for in the trial court, or in this court. Defendant has seen fit to stand or fall on the contention that his negligence is a complete bar. We do not sustain this contention. We see no principle of law on which
it can be said that the negligence of one beneficiary can prejudice other beneficiaries. There is no partnership or community of interest between them; one is in no sense the agent or representative of the others. His negligence should not be imputed to them, and it should detract nothing from them. If the children were small, and the deceased the breadwinner of the family, the objectionable result of such a rule would be more pronounced, but the principle is just the same." In the annotation to this case in 23 A.L.R. 643, the editors begin with this comment: "There is a considerable number of cases supporting the general proposition that the contributory negligence of one beneficiary in an action for death will not bar recovery for the benefit of other beneficiaries, who were not negligent. Recovery will be defeated, at most, only to the extent of the negligent beneficiary's interest. The reported case (Kokesh v. Price, ante, 643) is in accord with this general rule." But the editors add that "There is some conflict, however, on the question." Among the decisions taking the contrary view is that of Hazel v. Hoopeston-Danville Motor Bus Co., 310 Ill. 38
(141 N.E. 392, 30 A.L.R. 491), but to the report of the case in the last-named volume there is an annotation wherein the editors say, that, "As stated in the earlier annotation on the present question, the weight of authority supports the doctrine that the contributory negligence of one beneficiary in an action for death will not bar recovery for the benefit of the other beneficiaries who were not negligent." A further annotation may be found in 69 A.L.R. 470, to the report of the case of Herrellv. St. Louis-San Francisco Railway Co., 324 Mo. 38
(23 S.W.2d 102), where many additional authorities are cited. While as on many other questions there is a minority ruling, the great majority of the decisions hold that the negligence of one beneficiary can not be charged against another.
While counsel for plaintiff in error in their brief do not so state it, their position seems to be that we should apply to this character of suits the prevailing rule that when plaintiffs sue jointly in ejectment for the recovery of realty, and the proof shows that one of them is not entitled to recover, there can be no recovery for any of them. See Bohanan v. Bonn, 32 Ga. 390;Walker v. Pope, 101 Ga. 665 (29 S.E. 8); Glore v.Scroggins, 124 Ga. 922 (53 S.E. 690). This rule is far from being universal in its application. It is not applicable even in ejectment where an equitable plea is filed which
affects the plaintiffs differently. Rumph v. Truelove,66 Ga. 480. The rule does not prevail at all in equity. Bigham
v. Kistler, 114 Ga. 453 (40 S.E. 303). The foundation of this rule as applied in ejectment cases rests, we apprehend, on the fact that originally ejectment was employed only to determine the right of possession, and not until the adoption of our first Code, containing what is section 33-119 of the Code of 1933, did a judgment therein determine title also. Parker v. Stambaugh,71 Ga. 735, 736; Vada Naval Stores Co. v. Sapp, 148 Ga. 677,681-682 (98 S.E. 79). But the right of the coplaintiff in the case before us depends on neither the right of possession nor title, but it is one that did not exist at common law, being given by legislative enactment.
It is true that this court has more than once said that where the homicide is that of a mother who leaves a husband and child or children, the right of action given to the husband and children is joint. Thompson v. Georgia Railway Power Co.,163 Ga. 598, 602 (136 S.E. 895); Hood v. Southern RailwayCo., 169 Ga. 158, 164-165 (149 S.E. 898); Watson v.Thompson, 185 Ga. 402, 405 (195 S.E. 190); Thompson v.Watson, 186 Ga. 396 (197 S.E. 774). The statute itself does not describe it as a joint cause of action. It merely declares that the plaintiffs shall sue jointly and not separately. What was ruled in these cases was that if the deceased left a husband, and all the children, or a husband and child, or children and no husband, an action for her death under this statute could not be maintained unless the husband, in the event she left a husband, and all the children surviving her, were named as plaintiffs in the action. For the death of the mother the children had no right to sue, nor had the husband, until the passage of this statute. It did create the cause of action. And since the statute declared that they should sue jointly and not separately, it was in that sense that it was spoken of as a joint cause of action, or a joint right of action. It was a joint right to bring the suit; that right, if it be exercised at all, to be by all of them who survived her. All of the decisions next above referred to were dealing with the necessity of all joining as plaintiffs. While some of the reasoning employed in some of these cases may seem to point the other way, even strongly so under the language used, the decisions must be considered in the light of their facts; and when so considered, they hold nothing contrary to the view now being expressed.
An examination of the history of that provision of our law in the Code, § 105-1306, as was done by Mr. Justice Hines inThompson v. Georgia Railway Power Co., supra, adds strength to the argument that the inability of the husband to prevail will not work a denial of the children's right. Before the act of October 27, 1887 (Ga. L. 1887, p. 43), section 2971 of the Code of 1882 declared that a widow, or, if no widow, a child or children, might recover for the homicide of the husband or parent. By that act the Code section was amended by inserting after the words "surviving child or children" the following: "The husband may recover for the homicide of his wife; and if she leave child or children surviving, said husband and children shall sue jointly and not separately, with the right to recover the full value of the life of the deceased, as shown by the evidence, and with the right of survivorship as to said suit if either die pending the action." As pointed out in Thompson v.Ga. Ry. Power Co., supra, this act was not necessary in order to enable minor children to recover for the homicide of their mother under said section of the Code, because this court had held, in Atlanta West Point Railroad Co. v. Venable,65 Ga. 55, that this section gave a right of action to minor children for the homicide of their mother, and that "The only effect of this act, so far as children are concerned, is to lessen the amount which they could recover for the homicide of their mother, as under this act the full value of the life of the wife was to be shared by the husband and children jointly." To answer in the affirmative the first question propounded by the Court of Appeals would be tantamount to holding that the amendatory act of October 27, 1887, giving the husband the right of sharing with the children in the recovery for the death of the wife and mother, had the effect of limiting the rights of the children which had previously been given them. We are of the opinion that such was not the legislative intent. The child's right to recover is not derived from the father, and the negligence of the father does not deprive the child of its right to recover. The suit was correctly brought, the husband and child suing jointly, as required by the statute. Unless our interpretation of the statute in this respect be correct, then it would not be true, as stated in Thompson v. Ga. Ry. PowerCo., supra, that the only effect of giving the husband also the right to sue jointly with the children "is to lessen the amount which they could recover," but on the contrary
the effect of the amendatory act hereinbefore referred to would be to entirely defeat a recovery by the children.
A consideration of the fourth and fifth questions requires a reference to another section of the Code. The language of section 105-603 is as follows: "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained. "It has been held that "other cases" are manifestly those in which the plaintiff could not by the exercise of ordinary care have avoided the consequences of the defendant's negligence; in cases of that kind, both parties being at fault, the damages are apportioned. See Americus, Preston Lumpkin Railroad Co. v. Luckie,87 Ga. 6, 7 (13 S.E. 105). In a comparatively early case it was ruled: "In an action by the wife against a railroad company for the homicide of her husband, all the facts and circumstances connected with the killing, or any relation existing by contract or by law between the person killed and the company, which would bar a recovery by him for damages, in case he had not died, apply to and govern the right of the wife." See Hendricks v. Western Atlantic Railroad Co., 52 Ga. 467. And in many later cases it has been held that if the deceased was guilty of such negligence as, had he survived, would have prevented him from recovering, it would likewise bar a recovery by one to whom the law gives a right of action for his wrongful death. Georgia,Carolina Northern Ry. Co. v. Hallman, 97 Ga. 317
(23 S.E. 73); Western Atlantic R. Co. v. Herndon, 114 Ga. 168
(39 S.E. 911). Of course this is the converse of the proposition. A case in point, however, is Atlanta Charlotte Ry. Co. v.Gravitt, 93 Ga. 369 (20 S.E. 550, 26 L.R.A. 553, 44 Am. St. R. 145), where it was ruled that "one whose negligence has brought about a calamity to a little one whom he is legally bound to watch over and protect from injury can not be allowed to profit by the result of his own inexcusable, if not criminal, neglect and misconduct. . . The object of the rule is not to shield a negligent defendant from the penalty of his wrongdoing, but merely to deny aid to a plaintiff who, though equally guilty, nevertheless comes into a court of justice and demands the fruits of his own unpardonable neglect of both a moral and a legal duty." Compare Savannah Electric Co. v. Thomas, 30 Ga. App. 405, 414 (118 S.E. 481), and cit. It is true that in the Gravitt case the court was dealing with such conduct on the part of the parent plaintiff as completely destroyed the right of recovery, and not merely such contributory negligence as would lessen the amount; but we think the controlling principle is the same, and that the greater includes the less. We are borne out in this view by the decision in Stamps v. Newton County, 8 Ga. App., supra. Whether or not the husband's right to recover, if his negligence be less than the defendant's, should be denied him altogether if by the exercise of ordinary care he could have prevented the death of his wife, and thus have avoided the consequences to himself, that is, the deprivation of the life of his wife, caused by the defendant's negligence, is a question of some difficulty. However, upon due reflection we can see no reason for reading an exception of this character into the all-embracing mandate of our law, to wit, "If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover." It is probably not often that such a situation will arise in suits brought under the Code section on which the present suit is founded; but when it does, in our opinion the further provision of our law next above quoted applies. The language of the Code, § 105-603, is not "could have avoided the injuries to himself," but "the consequences to himself." The consequence to himself was the loss of the life of his wife. In one of the earliest and most famous cases where this rule was applied the suit was for the killing of the plaintiff's donkey. Davies v. Mann, 10 Meeson Welsby, 546, referred to in a paper delivered before the Georgia Bar Association by Judge L. P. Goodrich, dealing with the origin of this rule. Ga. Bar Asso. Report for 1940, pp. 174 et seq.
The first question propounded by the Court of Appeals is answered in the negative; the second in the affirmative; the third in the negative. The fourth question does not admit of a yea or nay response. Our answer to the fourth question is this: If the husband be negligent, but his negligence less than that of the defendant, he should be permitted a recovery, but, there being but one child, his part thereof should be less than one half the value of the wife's life, reduced by a sum proportioned to the amount of fault attributable to him, with the further proviso that if by the exercise
of ordinary care he could have avoided the consequences caused by the defendant, he is not entitled to recover at all. Nor can the fifth question be answered except in this way: There can be no apportionment of the amount of the recovery, unless the husband as well as the child is entitled to recover. If there is to be an apportionment, the child's part would be one half of the value of the life of the wife and mother, and the husband's one half of such value diminished in proportion to his negligence. The answer to the fifth question, in so far as it affects the husband's right to a portion of the recovery, is given subject to the provisos, first, that his contributory negligence is less than that of the defendant; and second, that he could not by the exercise of ordinary care have prevented the homicide of his wife.
All the Justices concur,except