104 Ga. 809 | Ga. | 1898
Anna Amos brought suit in the city court of Atlanta against the Atlanta Railway Company, for a tort committed upon her minor son on October 18, 1895, alleging in her petition substantially as follows: At the time mentioned the minor son was thirteen years of age, and was engaged at work in the county chain-gang near the city limits, serving there a sentence of six months, which would have expired in 77 days from the date of the injury. The injury resulted in the immediate death of her son, and was caused, by the negli
In the case of Shields v. Yonge, 15 Ga. 356, Benning, J., says: “May a father treat his minor son as his servant, and sue for an injury to the son, as for an injury to a servant? If the son be old enough to render service, the father may.” To use an illustration presented in the argument of counsel for plaintiff in error: Suppose a child 18 years of age is attending college, and is a positive expense to his parent and renders no service whatever; we apprehend it would not be seriously contended that there could be no recovery by the parent for an injury to him. Or suppose the child should have a spell of illness for several months, and while in that condition should receive an injury, when at the time it was unable to render service on account of sickness; certainly this condition could not operate as a bar to the parent’s right of action. Neither would it affect the right of a parent to have redress for such injuries because the child is, at the time, temporarily engaged in the service of another. In 1 Jaggard on Torts, 451-2, the rule is expressed in the following language: “ It is not necessary to show that the child rendered valuable services. Pouring tea, or milking cows, has been held to be an act of service. Services may continue, notwithstanding a temporary absence. Even a married daughter living apart from her husband may, in this sense, render services to her father. Proof of actual service of an infant is unnecessary. Right to service is enough. If the child is of age, there must have been loss of service, to entitle the parent to recover. The legal right of the parent at the time to command the services of the child, though she resides and is temporarily employed elsewhere, is sufficient. It rests on his legal obligation to provide for her support and education, and his consequent right to the profits of her labor. This fiction of service as the basis of the right of parent to sue for wrongs done the child is generally recognized in America, al
Judgment reversed.