101 Ga. 70 | Ga. | 1897
The petition is filed by the father, alleging the wrongful homicide of his son, aged 14 years, by the servants and agents of the defendant engaged in the running and operation of its trains. It may be well to consider, in the determination of this question, the basis of the father’s right to recover when he shall have made out a proper case. Section 3816 of the Civil Code provides that every person may recover for torts committed to himself, or his wife, or his child, or his ward, or his servant. This section is simply declaratory of the common law. Bell v. Central Railroad, 73 Ga. 520. At common law, the parent’s right to recover is by legal fiction predicated upon the relation of master and servant. Wood's Master and Servant, p. 449, and authorities cited under note 3 ; Cooley on Torts (2d ed.), p. 268 ; 1 Jaggard on Torts, pp. 451, 461, and authorities cited in note 23. The action is at common law limited to the recovery of damages for loss of the child’s services. Cooley on Torts, p. 268, and authorities cited in note 4 ; 5 East, 45 ; 6 East, 391; 11 East, 23; Sir T. Raym. 259; 1 Jaggard on Torts, p. 451; Wood’s Master and Servant, pp. 444, 445, quoting from Lord Coke and citing authorities at footnote 1. The decisions of our court are in entire harmony with the principles of the common law on this subject. Belly. Central R. R., 73 Ga. 520, supra; Central R. R. v. Harrison, 73 Ga. 744; Shields v. Yonge, 15 Ga. 356 ; Allen v. Atlanta Street R. R. Co.,
In the action brought in the present case, the father can not be compensated for the personal suffering of the child, or for any loss occasioned to him by diminution of his capacity in any respect, or any disability created by the effect' of the injury sustained upon his health, which would necessarily enter into the composition of an award of damages for the personal injury. 34 Hun, 510. The plaintiff had a right to the services of his child, they were of pecuniary value to him, and any wrong by which he was deprived of those services was a wrong done to his property rights. 75 N. Y. 195. In such an action, the homicide is stated as an element only of the plaintiff’s case and by which damages resulted from the loss to the plaintiff of the child’s services. Where an injury is done to the person of the plaintiff, the pecuniary damage sustained thereby can not be so separated as to constitute an independent cause of action; for the cause of action is single and consists of injury to the person, and the damages are the consequence merely of that injury. 75 N. Y. 195. As has been shown, the parent or master has no right of action for the battery or homicide of the child or servant. No right of his is invaded or infringed, unless by the infliction of the injury he sustains the loss of service of the child or servant to which he is entitled. It would be an
The judgment of the court below in sustaining the demurrer to the declaration is
Reversed.