117 Ga. 168 | Ga. | 1903
Lead Opinion
This record presents but a single question for our determination, and that is, has the mother of an illegitimate child a right of action, under the Civil Code, § 3828, for his wrongful or negligent homicide ? That section reads 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 case to the children, and in the latter to the surviving child or children. The husband may recover for the homicide of his wife, and if she leaves-child or children surviving, said’ husband and children shall sue-jointly, and not separately, with the right to recover the full value-of the life of the deceased, as shown by the evidence, and with the-right of survivorship as to said suit if either die pending the action. A mother, or, if no mother, a father, may recover for the 'homicide of a child minor or sui juris, upon whom she or he is-dependent, or who contributes to his or her support, unless said
Instances of the application by this court of the second of these rules of construction are: Hicks v. Smith, 94 Ga. 809, Floyd v. Floyd, 97 Ga. 124, and Johnston v. Taliaferro, 107 Ga. 6. In the first of these cases it was held: “Where, by the provisions qf a will made by the great-grandfather of a bastard on the paternal line, an estate is vested in the father of a bastard for life with remainder over to his children, and, he failing issue, remainder over in fee to other great-grandchildren of the testator, upon the death of the father of such bastard without issue other than such legitimated bastard, while the latter, by force of the statute, may take by descent from his father, he can not take by purchase under the will of his great-grandfather, which devises the estate to his great-grandchildren generally, there being in the will no language expressly indicating a purpose to include within the scheme of his benevolence any bastard descendants.” Mr. Justice Atkinson, in that case, said: “ The word children, as a general rule, means legitimate children, and will not be extended by implication so as to embrace children other than legitimate, unless such construction be necessary to carry into effect the manifest purpose of the testator.” In the second case it was held: “ The term ‘ child,’ as employed in section 2664 of the code, does not include^a bastard so as to entitle him to the benefits of its provisions, and the con elusive presumption of a gift resulting from continuous possession, under the circumstances therein set forth, arises only in favor of legitimate children. ” In the opinion Chief Justice Simmons said: “ It is well settled that at common law the words child and children mean only legitimate child and children.” In the third case it was held: “ The words (child ’ and ‘ children,’ appearing in a deed conveying to an unmarried female certain property during her life, and at her death to such child or children as she may leave living at the time of her death, will not include an illegitimate child of such female born several years after the making of the deed, unless it plainly appears from the language of the instrument that it was the intention of the grantor that an illegitimate child was to take thereunder. The word ‘ issue,’ used in a subsequent part of the deed under consideration in the present case, is to be given the same meaning as the words child or children.” Mr. Justice Cobb, in deliv
The exact question we have in hand has been decided by equrts In other jurisdictions, and upon the application of the two rules of construction under discussion. In Dickinson v. North-Eastern Railway Co., 2 Hurl. & Colt. 735, it was held, that the word “child,” in sec. 2 of the 9 & 10 Yict. c. 93 (Lord Campbell’s act, which is the prototype of our statute), means a legitimate child; and that an action could not be maintained on behalf of a bastard child against a railway company for the homicide of its mother. Counsel for the plaintiff in that case contended that the case was within the spirit of the act, for beyond question the child was dependent solely on the mother, and that the act must mean ■any child who was deriving pecuniary advantage, and is deprived thereof by the death. Pollock, C. B., said: “We have no doubt that in the act of parliament, as in all others, the word * child ’ means ‘legitimate’ child only.” In Gibson v. Midland Railway Co., 2 Ontario, 658, it was held, under a statute of Ontario similar to Lord Campbell’s act, the mother of an illegitimate child could not recover damages for its death. To the same effect is Clarke v. Carfin Coal Co. (Scotland), App. Cas. (1891) 412. In Harkins v. Philadelphia & Reading R. Co., 15 Phila. 286, it was held: “ The mother of an illegitimaté child is not within the words or meaning of the act of April 26, 1855, which enacts that the persons entitled to recover damages for any injury causing death shall be the ‘husband, widow, children, or parents of the deceased, and no other relative. ’ ” In his opinion, Thayer, P. J., after citing Dickinson v. North-Eastern Ry. Co., supra, said: “The line of argument adopted by the plaintiff’s counsel in that case was much the same as that pursued by the plaintiff’s counsel in the present case, viz., that the legislature intended the right of action to be coextensive with the moral right to support; that, for many purposes, the law recognizes the relationship of a bastard child to his parent; and that, therefore, the question of legitimacy or illegitimacy is immaterial. But we are. not convinced by this reasoning.
There are, however, authorities of a different tenor. In Muhl’s admr. v. Michigan Southern R. Co., 10 Ohio St. 272, the headnote is “ In an action by the administrator of a woman killed by the carelessness of the servants of a railroad company in running its locomotive, the petition alleging and the proof showing the deceased to have left a son as her sole surviving heir — held: 1st. That it is error to order a nonsuit on the ground that such child is illegitimate. 2d. That the fact of such child’s legitimacy or illegitimacy can in no respect affect the right of action in his behalf.” It appears that the suit was based upon a statute of Ohio, which provided that the action fora homicide should be brought by the personal representative of9 the deceased, and that the recovery should be distributed to the “ widow and, next of kin, in the proportions provided by law in relation to the distribution of personal estates left by persons dying intestate.” The deceased left a lawful sister and an illegitimate son. The trial court granted a nonsuit, because the Ghild alleged in the petition to be next of kin was a bastard. This ruling was reversed by the Supreme Court, upon the ground that the action was properly brought in the name of the personal representative of the deceased, and that the question whether the child or sister should be regarded as the next of kin did not in any way affect the cause of action, for the reason that the right to sue existed in favor of the administrator in either case. It is true
In this State the mother of a bastard child is entitled to its possession, unless it is legitimated by the father, and, being the only recognized parent, may exercise all the paternal power. Civil Code, §2509. “Bastards have no inheritable blood,except that given to them by express law. They may inherit from their mother, and from each other, children of the same mother, in the same manner as if legitimate. If a mother have both legitimate and illegitimate children, they shall inherit alike the estate of the mother. If a bastard dies leaving no issue or widow, his mother, brothers, and sisters shall inherit his estate equally. In distributions under this law the children of a deceased bastard shall represent the deceased parent.” Ib. § 2510. While it is evidently true that the status of bastards under our law is greatly superior to what it was under the common law, yet it can not be said that they have been legitimated, at least for all purposes, and placed upon the same footing in all respects as children born in lawful wedlock; and, in view of the decisions of this court, above cited, to the effect that the statute giving a right of action for a homicide should be strictly construed, and that the word “ child,” used in a statute, prima facie means a legitimate child, we are constrained to hold that the mother of an illegitimate child has no right of action for his wrongful or negligent homicide. The statute provides that “A mother, or, if no mother, a father, may recover for the homicide of a child minor or sui juris, -upon whom she or he is dependent, or who contributes to his or her support, unless said child leave a wife, husband, or child. Said mother or father shall be entitled to recover the full value of the life of said child.” There are no words in the statute qualifying the word “ child ” in any particular, nor is there anything in the context which would authorize a conclusion that the legislature intended to use the word in any broader sense than is usually given it in statutes, but, on the contrary, the context plainly indicates, to our mind, that the child in legislative contemplation was the child of ■ a lawful marriage, whose mother, or, if no mother, whose father, might recover for his homicide. Judgment affirmed.
Concurrence Opinion
I concur in the judgment rendered in tíjis ca'se, Because of the previous rulings of this court, which seem to be binding upon us. If it were an original question, I would never ■agree to a judgment which holds that the doubly unfortunate mother of a child whose sole parent she is and upon whom she is •dependent — this dependence probably due to the fact of its miserable birth — can not recover for its homicide, although our lawmakers have declared that “ a mother may recover for the homicide of a child upon whom she is dependent, or who contributes to her support. ”