25 Ga. App. 364 | Ga. Ct. App. | 1920
Lead Opinion
Mrs. Marjorie A. Beale brought suit, through her husband, R. H. Beale, as next friend, to recover damages for the homicide of her father, claiming that he had been killed on account of the negligence of the Georgia Railway & Power Company. The deceased was a widower at the time of his death. The petitioner, at the time of her father’s death, was married, and, nothing appearing to the contrarjq it must be presumed that she was supported by her husband. She was the only minor child of the deceased.
This case presents but a single question, and that is, has the plaintiff, under the facts stated, a right of action under the provisions of the Civil Code (1910), § 4424, for the negligent homicide of her father? The code-section referred to provides as follows: “A widow, or, if no widow, a child or children, may recover for the homicide of the husband or parent; and if suit be brought by the widow or children, and the former or one of the latter dies pending the action, the same shall survive in the first
Thus it will be seen that the decisions are uniform in holding that dependency is the basis of the right of a child to maintain such an action. Upon this theory and interpretation it is manifest that 'a married woman, not dependent upon her father, cannot maintain an action for his homicide, since by marriage the wife’s legal civil existence is merged in the husband (Civil Code (1910), § 2992; Central of Georgia Ry. Co. v. Cheney, 20 Ga. App. 393, 93 S. E. 42), and upon the marriage of the minor daughter the duty to support is transferred to the husband. Civil Code (1910), § 2996; Brunswick Light Co. v. Gale, 91 Ga. 813 (18 S. E. 11); Georgia Railroad &c. Co. v. Tice, 124 Ga. 460 (5) (52 S. E. 916, 4 Am. Cas. 200) ; Wrightsville S Tennille R. Co. v. Vaughn, 9 Ga. App. 371 (71 S. E 691); Civil Code (1910),
Under our view of the law as it has been interpreted, we are of the opinion that the petition failed to set forth a cause of action, since it appears therefrom that the plaintiff had no beneficial interest in the life of the one alleged to have been killed, and that the court erred in failing to sustain the defendant’s demurrer.
Judgment reversed.
Dissenting Opinion
dissenting. While conceding that the object of the statute is to provide for the dependents of a deceased parent, yet the statute, instead of providing that dependents should recover, and thus leaving the question as to dependency open to controversy in every case, seeks to obviate this confusion, and specifically designates the beneficiaries by name, without any qualification indicating dependency. Among others, the statute provides that a “child” may recover for the homicide of its parent. The Supreme Court, having in mind this object of the statute, has construed the word “child” to mean a child who is an infant, i. e., a child under 21 years of age, and not an adult. Mott v. Central Railroad, Coleman v. Hyer, Western & Atlantic R. Co. v. Harris, supra. The statute therefore is to be construed as if the word “ child ” read “ infant.” Any construction, therefore, of the word “child” (meaning infant) which limits its meaning to an infant who is not married gives to the word “child” a construction to which it is not susceptible under any of its recognized definitions. Such a construction adds to and amends the statute, and does not construe it. It amounts to judicial legislation. The statute having named and fixed a “ child ” (meaning infant) as 'a beneficiary, no judicial inquiry into the child’s dependency, either as a matter of law or fact, is permissible. The duty of the court is only to construe the words of the statute and expound the law as it is written, and not to add to the definition of a word or amend the statute. The statute in terms names a “ child ” (meaning infant) as a beneficiary, and therefore precludes any inquiry into the “child’s” (meaning infant’s) dependency. The beneficiary therefore may in a particular instance fall without the object of the statute, but yet fall within its terms.
Besides, financial dependency of a child, or dependency for support upon the parent, does not apply in every case under the
It follows therefore that no change in the status of such “child” (meaning infant), by marriage or otherwise, even though the child’s dependency upon the parent for support is destroyed should operate to deprive such “child” (meaning infant) of the right secured by the statute to recover for the homicide of the parent. Marriage, while destroying the “child’s” (meaning infant’s) status of financial dependency upon the parent for support, does not destroy the child’s dependency upon the parent for other things which a parent can give, and does not destroy the “child’s” status as an infant. An infant who is married in an infant still. 3 Bishop on Married Women, sec. 511 et seq.; Nicholson v. Wilborn 13 Ga. 467.
I am therefore of the opinion that the marriage of a “child”