Georgia Railroad & Banking Co. v. Wynn

42 Ga. 331 | Ga. | 1871

Warner, J.

There was no error in the judgment of the Court below in overruling the first ground of demurrer to the plaintiff’s declaration, as set forth in the record. After the most diligent research, we have not been able to find a single case in which it has been held, that, by the common law, a husband could maintain an action to recover damages for the homicide of his wife. In Baker vs. Bolton, 1st Campbell’s Reports, 493, Lord Ellenborough said, “In a civil Court, the death of a human being could not be complained of as an injury; and, in this case, the damages, as to the plaintiff’s wife, must stop with the period of her existence.” This declaration of Lord Ellenborough, coupled with the fact that no such case can be found in the Reports, or cited in the elementary books, furnishes almost conclusive evidence of the rule of the common law upon that question. The 2920th section of the Code, providing for the recovery of damages for physical injuries, limits the right of recovery to a widow, or if no widow, then to the child or children, for the homicide of the husband or parent. If the General Assembly had intended to have altered the common law so as to give to the husband a right of action to recover damages for the homicide of his wife, they would have so declared when providing for the particular class of persons specified in the Code. In our judgment, the Court below erred in overruling the second ground of demurrer to the plaintiff’s declaration, as specified in the record.

Let the judgment of the Court below be reversed.