1. The mother is a proper party plaintiff to recover the value of the life of a son tortiously killed
unless
he is survived by a wife or child. Code § 105-1307. Daniel Kickаsola had no child. He lived with Coleen (Coco) Clark, together with the Clark parents at first and later by themselves. There was no ceremonial marriage, and Coleen did not take the Kickasola name until some time after the homicide; however, she was not legally obligated to do so if she did nоt want to. She testified that the couple had agreed and assumed that they were married to each other and they represented themselvеs to be man and wife, lived together as such, pooled their money, shared the same bedroom and, in her opinion, had been married about two yеars. There was testimony by other witnesses that they were considered man and wife, and by at least
*759
one of these witnesses that Kickasola had introduсed her as his wife. The evidence may be shaky, but it is sufficient, if the jury chose to believe it, to constitute a common law marriage.
Steed v. State,
2. As to the cause of death, it is not denied that the defendant Steed was employed by Jim Wallace Oil Company; that he opened the service station at an early hour of the morning and was there alone with a considerable amount of money when the Kickasola youth came up on his motorcycle and started placing gasoline in its tank; that Steed carried a pistol; that he went out to the gas pump where there was an altercation and that Steed shot and fatally wounded Kickasola. No one actually saw what happened. Steed eventually pleaded guilty to manslaughter. Hе testified in this case that he had unwittingly insulted his long-haired customer by calling him "ma’am,” and that he was assaulted and eventually forced to fire his pistol in self-defеnse. He also attempted to explain the guilty plea by relating circumstances under which, having no money to hire counsel and having discussed the mаtter with court-appointed counsel for not over thirty minutes, he felt that since he had caused a death there was nothing else to do. In any evеnt, there was some evidence from which a jury could have reached the conclusion that the shooting resulted from the fears of a reasоnable man that his own life was in danger and that the defense was justified. In such event there was no tortious misconduct on his part and, again, a verdict for the defendant is sustainable. Code § 105-1801;
Johnson v. Jackson,
3. Enumerations of error referring to judicial instructions to which no objection was made in the trial court, such as those complained of in enumerations of error 4, 5, 6,11,12,13,17,18 etc. will not be considered. *760 Code § 70-207 (a).
4. In a civil action, evidence that the defendant pleaded guilty to the act in a prior criminal proceeding is admissible in evidence and is to be considered along with all the other evidence as a circumstаnce to be weighed by the jury.
Roper v. Scott,
5. The instructions on what constitutes a common law marriage were correct. Code § 53-101;
Peacock v. Peacock,
6. The wrongful death statutes codifiеd in Code Chapter 105-13 refer to death by homicide which "results from a crime or from criminal or other negligence.” Code § 105-1301. The burden is of course upon the plaintiff to prove this essential element of the action, and the court properly so charged, since justification is a defense whiсh renders the behavior noncriminal. The court also erroneously charged that "it was not necessary for the plaintiff to prove any negligence or any criminal act,” according to the transcript. This was probably a lapsus linguae, if not a typographical error, but in any event it is one of which the plaintiff cannot complain since it is in her favor.
7. "Where a verdict is returned for defendant, errors, if any, in a charge, failure to chаrge, or denial of request to charge, which deal with damages are regarded as harmless and afford no ground for reversal.”
Finley v. Franklin Aluminum Co.,
8. "The object of аll legal investigation is the discovery of the truth.” Code § 38-101. It is the duty of the judge to instruct the jury on the general features of the law applicable to the issuеs, and leave to the jury all disputed questions of fact.
Telfair County v. Webb,
9. The trial court did not err in failing to grant the plaintiffs motion for new trial on the ground urged by the plaintiff: viz., that the defendants were "in default” because they failed to file a brief in reply to the plaintiffs brief on the subject. We are citеd to no rule of the superior court requiring such a result. Nor is it likely that such a rule, if it existed, would be upheld by the appellate courts. Cf.
Auerback v. Maslia,
10. Errors 28 through 34 contеnd that the court should have granted one or the other of plaintiffs motions for summary judgment. These questions Eire now moot.
Phillips v. Abel,
11. There appeEir to have been various hearings in this case prior to trial having to do with motions for summary judgment Emd like nonjury matters. Several briefs were Edso filed during the preliminEiry stages of litigаtion which Eire incorporated in this record. It is error to refuse to grant a pre-triEd heEiring and order pursuant to Code § 81A-116 where a timely motion to this effеct has been entered.
Malcolm v. Cotton,
The remaining enumerations of error have been examined and found without merit.
Judgment affirmed.