126 Ga. 794 | Ga. | 1906
(After stating the facts.)
1. The exact question made is, where a father, mother, and minor daughter were in a buggy passing over a rhilroad crossing, and the father and daughter were injured by the running of a train, and the father died about an hour afterwards, did the mother have a right of action against the railroad company on account of the injury to the minor daughter? The suit was not brought by the daughter for permanent injuries to herself, or by the mother as her next friend, but by the latter in her own behalf, based on loss of services and necessary expenses prior to the arrival of the daughter at the age of twenty-one years. The question stated may be divided into two others: First, at the time of the injury to the daughter, to whom did the cause of action arise? And second, if to the father, upon his death in a short time thereafter, did the right survive to. the mother ?
The first of these questions is answered by the Civil Code, § 3816, which reads as follows: “Every person may recover for torts committed to himself, or his wife, or his child, or his ward, or his servant.” This is only a codification of the pre-existing law, and the basis of the suit is loss of services and necessary expenses. Shields v. Yonge, 15 Ga. 349, 356; Central Railroad Co. v. Brinson, 64 Ga. 476; Civil Code, § 2502. If a right of action accrues at all on account of a personal injury, it arises immediately upon the occurrence thereof. The damages may continue for years,or be permanent in character; but the right to sue arises at once. This being so, and the father being in life at the time of the injury to his minor daughter, the right of action on account of the loss to him during her minority vested in him. It is said that, because he was hurt at the same time and died about an hour later, the injury and the death should be treated as coincident. But we can find no authority for such a contention. He was actually alive for an hour after the occurrence. If compos mentis, he could have made a will or a deed, or could have settled with the railroad for the damage accruing to him from the injury to his daughter. In
Can it be said that, because he lived only a short time, he could have been treated as not alive at all, and that in the supposed case of the daughter’s death before he himself died, the mother would have inherited in his stead ? We are unable to hold a man who is actually alive, and has.so many legal rights, to be dead in contemplation of the law, relatively to the particular right involved in this case. A person can not at once be actually both alive and dead; and one who has been hurt by a railroad train can not for that reason be treated as civiliter mortuus. The Civil Code, § 2503, provides that “Upon the death of the father, the mother is entitled to the jrossession of the child until his arrival at such age that his education requires the guardian to take possession of him.” She takes the custody of the child, however, as she finds it at the death of the father, and this statute gives no right of action on account of prior personal injury to the child. It may seem to be somewhat of a hardship that an injured child may be left with the mother, upon the death of the father, and that she can not sue for the previous injury to it; and the shortness of the time during which the father lived may make this view more striking. But we can not change the law on account of sjnnpathy. If the fact that the father lived for an hour only would create a cause of action in the mother which did not otherwise exist, how would it be if he had lived for six hours, or a day, or a week, or a year, or indeed for any time less than that in which the child would become of age ? In any of these supposed cases, the same argument, that the mother was left in possession of an injured child (supposing the injury to be permanent as alleged), would equally apply. The difference would be one only of degree, not of kind. It is also sought to bring the case within the rule that, where a wife is living separate from her husband, who has abandoned her and a minor child, and she has the entire care and custody of it, she is entitled to maintain an action
In England, under the common law, the general rule as to personal actions was expressed in the maxim “actio personalis moritur cum persona;” but actions on contracts express or implied'survived. The maxim was considered as applying to actions in form ex delicto exclusively; but all actions founded in tort did not abate. But a series of statutes, beginning with 4 Edward III, c. 7, in relation to personal property, and extending down to a late date (see statute of 3-4 William IY, c. 42 (2), in respect to personalty and realty), various actions arising from torts were made capable of surviving. Blackstone, in his Commentaries (vol. 3, p. 302), states the rule thus: “In actions merely personal, arising ex delicto, f.or wrongs actually done or committed by the defendant, as trespass, battery, and slander, the rule is that actio personalis moritur cum persona; and it shall never be revived either by or against the executors or other representatives.” In Pettus v. Ison, 11 Ga. 151, it was held that, where an action of trespass was brought for a direct and forcible injury to the property of the plaintiff, against the defendant, who died pending the suit, the action abated by his death, and could not be revived against his personal representative. In Brawner v. Sterdevant, 9 Ga. 69, where the plaintiff brought his action for the seduction of his daughter, containing an allegation “per quod servitiam amisit,” and the defendant died pending the suit, it was held that the suit abated, and could not be revived by scire facias. See also Neal v. Haygood, 1 Ga. 514; Thompson v. Central R., 60 Ga. 120, 122. The rule as declared by the common-law authorities and decisions in this State was thus codified in the original code (which took effect in 1863), § 2909: “No action for a tort shall abate by the death of either party where the wrongdoer received any benefit from the tort complained of.” This was carried forward into the Code of 1882, § 2967. It was held that the benefit to a wrong-doer which would cause an action of tort to survive the death of the plaintiff must be one flowing immediately from the tort. Swift Specific Co. v. Davis, 76 Ga. 787. In
If, as we have endeavored to show, upon the happening of the injury to the minor child the right of action arose in favor of the father, upon his death, though only an hour afterwards, the cause of action did not survive to the mother; and it follows that where these facts appeared upon the face of the petition, there was-no error in dismissing it on motion.
Judgment affirmed.
