47 Ga. App. 369 | Ga. Ct. App. | 1933
1. Under section 3021 of the Civil Code (1910), “until majority, the child remains under the control of the father, who is entitled to his services and the proceeds of his labor,” but “this parental power is lost” (among other prescribed ways) “by the failure of the father to provide necessaries for his child, or his abandonment of his family.” In such event, the mother, living separately from the father, and having the entire custody of their minor child, is entitled to the services of the child and the proceeds of his labor, and, in case of a tort to the child, may sue for and recover the same to her use. Civil Code, § 2994; Savannah, Florida &c. Ry. Co. v. Smith, 93 Ga. 742, 744 (21 S. E. 157); Newton v. Cooper, 13 Ga. App. 458 (79 S. E. 356). The statutory right of the parent to sue is merely declaratory of the common law, where such “right to recover is by legal ñetíon predicated upon the relation of master and servant,” and is “limited to the recovery of damages for loss of the child’s services.” Frazier v. Ga. R. Co., 101 Ga. 70, 72-75 (28 S. E. 662, 684); Shields v. Yonge, 15 Ga. 349 (2), 356 (60 Am. D. 698). But “in no case can a father maintain an action for a wrong done to his minor child, unless the father has incurred
2. “That a father may emancipate a minor child by allowing him to receive the proceeds of his labor is settled by our code and by decisions of this court. Allowing the child to receive the proceeds of his oyra labor amounts to an emancipation.” Hargrove v. Turner, 112 Ga. 134, 135 (37 S. E. 89, 81 Am. St. R. 24). Such a manumission may be temporary, under the statute, by the father’s express or implied “consent to the child receiving the proceeds of his own labor, which consent shall be revocable at any time” (Civil Code, § 3021, par. 3), for a particular employment, in which event it does not follow “that the minor has been manumitted by the father for the whole period of his minority.” Atlanta & West Point R. Co. v. Smith, 94 Ga. 107 (4), 111 (20 S. E. 763); Wilson v. McMillan, 62 Ga. 16, 18 (35 Am. R. 115). Or the father may permanently lose his parental rights to the child’s services and their proceeds by express or implied consent, or by his failure “to provide necessaries for his child, or his abandonment of his family.” Civil Code, § 3021 (3); Vale Royal Mfg. Co. v. Bradley, 8 Ga. App. 483 (3), 490 (70 S. E. 37); Richter v. Va.-Car. Chemical Co., 1 Ga. App. 344 (2) (57 S. E. 939). A mother of a minor, who is a widow or stands in the place of the father after his abandonment of the family, likewise may manumit the child under the same conditions which apply to the father. See Harris v. Johnson, 98 Ga. 434 (2), 436, 437 (25 S. E. 525). The presumption is that thé earnings of a minor child belong to the father, if living, unless he has abandoned the child to the mother living separately from him, and that they belong to her, if the mother has thus become entitled to the child’s services; and where it is claimed that the earnings belong to the minor, that presumption must be overcome by proof of either express or implied manumission. See Jones v. McCowen, 34 Ga. App. 801 (131 S. E. 290).
3. In the instant action of a fifteen-year-old minor, suing by
(a) It was error to exclude the evidence of the minor, seeking to prove conversations with him by his mother relative to his receiving the proceeds of his own labor, and that she “had told him prior to the filing of this suit it was satisfactory to her for him to leave home, and make his own way in the world, and that she expressly consented for him to receive the proceeds of his labor,” upon the grounds that “the witness was incompetent to testify as to any such conversation, and that a mere verbal statement made by the mother to the plaintiff would not have the effect of manumitting the plaintiff, and have the effect of authorizing him to receive the proceeds of his labor.” There was no better or more direct method of proving an express manumission by the mother; and the plaintiff, a fifteen-year-old minor, was competent, like any other witness, to prove such an agreement with the mother.
4. The instant petition sought a recovery for the minor not only of lost earnings, but for permanent injuries and pain and suffering from drinking an alleged poisonous foreign ingredient placed in the beverage compounded and bottled by the defendant.
(a) A minor as well as an adult may recover for pain and suffering. Elk Cotton Mills v. Grant, 140 Ga. 727 (6), 733 (79 S. E. 836, 48 L. R. A. (N. S.) 656); Williams v. Jones, 26 Ga. App. 558 (3) (106 S. E. 616). The right of a parent to sue for his own benefit for a tort to his minor child being only for lost services and necessary expenses caused by the injury, where the parent is entitled to such services, even an infant unemaneipated by his father is entitled to '“damages' on account of any tort committed resulting in damages to him, whether the tortious act affects the parent or not,” and “if the injury is one from which the father does not sustain any damage, that is, which does not destroy or impair the ability of the child to render services to the father, there is no right of action in the father for the wrong done the child.” Hurst v. Goodwin, 114 Ga. 585, 586 (40 S. E. 764, 88 Am. St. R. 43); Central R. Co. v. Brinson, 64 Ga. 475, 476; Spradlin v. Ga. Ry. & El. Co., 139 Ga. 575, 578 (77 S. E. 799). This rule applies equally to a mother in loco parentis as to the father. And where, as in the instant case, the evidence shows emancipation by both father and mother, the sole right of recovery for the personal damages of the child is in him. Accordingly with regard to general damages, pain and suffering, the nonsuit was not proper, upon the contention that the sole right to their recovery was in the mother.
5. “Where a suit is brought by a minor for a tort committed upon him, the proper method is for the petition to be brought in
6. “When a manufacturer makes, bottles, and sells to the retail trade, to be again sold to the general public, a beverage represented to be refreshing and harmless, he is under a legal duty to see to it that in the process of bottling no foreign substance shall be mixed with the beverage which, if taken into the human stomach, will be injurious.” Watson v. Augusta Brewing Co., 124 Ga. 121, 123 (52 S. E. 152, 1 L. R. A. (N. S.) 1178, 110 Am. St. R. 157). While it is true, as contended by the defendant and held in Hudgins v. Coca-Cola Bottling Co., 122 Ga. 695 (50 S. E. 974), that mere general averments of negligence, though good against general demurrer, are not sufficient when attacked by a special demurrer properly pointing out such defects, that “a specification of the particulars of the negligence relied on can not be avoided by an allegation that the plaintiff has been unable to ascertain the particular acts of negligence causing the injury, and on account of the manner in which the injury was inflicted they are more peculiarly within the knowledge of the defendant than of the plaintiff,” and that “general averments of negligence can not be aided by the maxim res ipsa loquitur” to assist a defective pleading (Hudgins case, supra; Commerce Coca-Cola Bottling Co. v. Farabee, 17 Ga. App. 487, 87 S. E. 720), yet in determining the prqpriety of a nonsuit, the rule of res ipsa loquitur is to be applied to the evidence of the injury; and where, as in this case— under allegations in the petition that the bottle of coca-cola drunk
7. On the cross-bill of exceptions, under the legal rules stated in the preceding paragraphs, the court did not err in overruling the demurrer to the petition, upon the grounds that the suit as brought could not be maintained by a minor, that there are no proper allegations of negligence, and that the petition fails to state a cause of action.
Judgment reversed on the main bill of exceptions; affirmed on the cross-bill.