Central Railroad v. Rouse
77 Ga. 393
Ga.
1887
Check Treatment
Bleckley, Chief Justice.

1. In a suit by a wife for the homicide of her husband, the number of minor children is not in issue, nor is their means of support. The 1 th ground of the motion for new trial complains that the court permitted an amendment to be made to the declaration, introducing the children into the case and alleging something in relation to their support. The declaration, we find, does mention that there are four *406minor children, and that they and the plaintiff were dependent upon the deceased for a support. That is not matter upon which an issue could arise in such a case. It did no harm, however, to introduce the names and number of the children into the declaration, because the statute contemplates that the recovery had, if any, shall descend to the wife and children, just as though the husband had left that much estate in personalty of any sort. The mention of the children in the declaration would serve as a sort of register of the persons interested in the recovery. There was probably no impropriety in mentioning the children.; but it was not matter that was necessarily to be presented in the declaration. No issue could be taken on it properly; and while we rule that it did no harm, and is not matter for reversal, we hold that it was not essential in any respect to the case. Complaint is made (and we intend this ruling to cover that point also) in the 8th ground of the motion for new trial, that evidence was admitted as to the support of the children and wife. We think this evidence was altogether irrelevant, and ought to have been excluded. Yet its admission in such a case as this would furnish no cause for new trial, if no more important error had been committed.

2. The declaration was demurred to and the demurrer overruled. Without considering whether that was proper matter for a motion for new trial (and it is not otherwise presented in this case), we hold, that the declaration set forth a cause of action, and was good against general demurrer; and there is no special demurrer in the record. If there had been a special demurrer, there was nothing for it to affect except the irrelevant allegation touching support of the children and wife.

3. A motion was made for nonsuit, and overruled. We think the evidence was ample to justify the denial of a nonsuit. The evidence showed that a certain piece of fuel that ought never to have come in contact with the bridge-keeper’s head had killed him. The place for that fuel *407was either in the wood-rack some miles distant from the bridge, or on the tender, or in the furnace; and it was found shortly after the passing of trains lying ini he bridge, this man lying there with it, dead, his head mashed with that piece of wood. The wood was so. much out of place, and the accounting for its being there was so imperfect, even to the last, that the jury were well warranted in concluding thatit came there by the negligence of the railroad company, in the manner alleged in the declaration, and that it killed the plaintiff’s husband in consequence of that' negligence. There is some mystery about the case; but juries have no more important function than to solve mysteries ; and we cannot say that they rendered any improper solution in their verdict, but, on the contrary, can say that when the plaintiff closed her evidence, the jury could well conclude that there had been negligence. The motion to nonsuit the case was; we think, founded on an entire misconception of the strength of this evidence.

4. Certain requests to instruct the jury were made by the defendant’s counsel and denied. They are set forth in the 11th, 12th and 13th grounds of the motion. In so far as they were legal, they were covered by the general charge. There is one of them embraced in the 12tlr ground, which has a tail to it that involved the decision of a question of fact by the judge. That part of the request invoked an instruction to the effect that, unless the inj ury was caused by the last train of three, there could be no recovery. Suppose the facts show that it was the last train, if any. It was not for the judge to determine what train it was; and the request, as to that part of it, was founded upon the theory that the judge could sit there and hear the evidence, and push out of the case with his own mind all of it but what he thought was the real cause of the injury complained of, which he had no power to do.

5. The'charge of the court touching fault, change of onus, and presumption, was in accordance with the well-settled law of this State. The 10th, 14th and 15th grounds *408of the motion for new trial are virtually an attack upon some half dozen decisions, or more, rendered by this court with reference to what will change the onus in an action by an employé of a railroad, or his widow, and what will not, and on the effect of proving fault in other employés of the railroad in relieving th'e injured employé from the presumption of fault on his part, etc. Of course it is idle for this court to be constantly repeating its well-considered rulings on any question; .and we simply pass these grounds with the remarks that I have made.

6. The measure of damages in an action by a wife for the homicide of her husband, since the passage of the act of 1878 (code, §2971), is not affected by the wants of the family, but depends solely on the value of the husband's life. In estimating such value by age, habits, health, occupation, expectation of life, ability to labor and to furnish care and attention to the family,, probable increase or diminution of that ability with lapse of time, rate of wages, etc., etc., the necessary personal expenses of the husband should be deducted, and the balance, reduced to its present value, would be the value of the life. The 9th ground of the motion for new trial sets forth a part of the charge of the court complained of, which recognizes an estimate made upon what would be required to support the wife and children, in arriving at .the amount of damages. We hold that this element has nothing whatever to do with the question. If a man’s family is expensive or inexpensive, and he is killed without any justification, his wife, if she sues alone, or his children, if he has no wife, can recover the value of his life; it matters not how they have been accustomed to be supported, or what their wants are or have been. It is simply a question of valuing that man’s life; and in making such valuation, he ought to be treated as any other producer, chargeable upon his income with his personal expenses — his own individual personal expenses. These would diminish his value to his family or his estate. Ascertain what his value to his *409family, including his earnings or income, would be, arrive at the gross amount, then deduct from it what he would have to lay out as a producer to render the service or to acquire the money that he might be expected to produce, reduce the whole net result to its present value, render a verdict for it, and the recovery would be sustainable. 73 Ga, 325.

Solely because of error in charging the jury as set forth in the tfth ground of the motion, the judgment of the court below is reversed.