186 Ga. 396 | Ga. | 1938
Four children of J. D. Milam brought an action against Mrs. J. H. Thompson, the fifth child, and her husband, J. H. Thompson, for recovery of damages in the sum of the alleged full value of the life of J. D. Milam, by reason of the death of Milam allegedly caused by the negligent acts of the defendants. J. H. Thompson kept and maintained an automobile for the pleasure and convenience of his family including his wife, and the automobile was being so used at the time of the accident resulting in the death of Milam. The mother was killed in the same accident, and predeceased the father. The injury occurred while Mrs. Thompson was driving the automobile with smoothly worn tires, over a slippery highway around a curve on a rainy day, at a dangerous and reckless rate of speed. It is charged that the death of the father, J. D. Milam, which resulted from the injuries received by him in the casualty which occurred while riding as a guest of his daughter, was “directly and approximately due to the wilful and gross negligence of the defendants . . in the following particulars, to wit: (a) In the failure of said defendant, J. H. Thompson, to provide said automobile with tires which could
To this petition the defendants filed a demurrer on the grounds that no cause of action was alleged, and no right to maintain the action was vested in the plaintiffs, but, if any right there was, it was vested in all of the children including the defendant Mrs. Thompson, and no action could be maintained unless she were joined as a party plaintiff. The court sustained the demurrer, and the plaintiffs excepted. The Court of Appeals reversed the judgment. Watson v. Thompson, 56 Ga. App. 490 (193 S. E. 75). On this decision of the Court of Appeals the defendants assigned error in a petition for certiorari, which writ was granted by this court. The assignments of error raise a number of questions relating to the rulings of the Court of Appeals; but in the view we take of the case it is only necessary to determine whether, under the facts alleged in the petition, a right or cause of action is stated against either Mrs. Thompson or her husband.
The rule of the common law was that actio personalis moritur cum persona,- and no action could be maintained by the personal representative or heirs of a deceased person to recover damages for a tortious injury suffered at the hands of another. Shields v. Yonge, 15 Ga. 349 (60 Am. D. 698). In 1846 Lord Campbell's act passed both houses of Parliament, which provided: “Whenever the death of any person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.” In 1850 (Cobbs Dig. p. 476) an act was passed in this State, as follows: “In all cases hereafter where death shall ensue from or under circumstances which would entitle the deceased, if
This section as thus amended appears in the Code of 1882, as § 2971. It was amended by the act of 1887 (Acts 1887, p. 44), and as amended it appears as the following sections of the Code of 1895: § 3828. “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
What is the nature and character of the right or cause of action given by the homicide statute of this State as it now stands? We think it fitting that we first approach this question by stating what, in our opinion, would constitute a pure survival of a cause of action. A pure survival of the cause of action had by the decedent would, as any other right, reside in his executor, administrator, or heirs, with the right of the administrator, executor, or heirs to sue instead of the deceased had he lived, and to recover the identical damages that the decedent could have recovered in an action brought by him, the recovery to be held by the executor, administrator, or heirs as any other property of the estate, and subject to the debts and liabilities thereof. It is interesting to note that section 2913 of the Code of 1863 says nothing at all about the recovery being had in all cases where death ensued under circumstances which would have entitled the deceased, had not death ensued, to sue and recover for the injury to him, as was provided in the act of 1850, and in Lord Campbell’s act. However, in Western & Atlantic Railroad Co. v. Strong, 52 Ga. 461, decided in 1873, it was said by this court: “By our law the right is given by statute to the wife generally for the ‘homicide’ of her husband. Surely this does not cover every case of homicide. Cases of self-defense, of inevitable accident, of execution by command of law, etc., must, from the nature of things, be excepted. And it seems to us that the true inquiry is: has the defendant violated any of the public or private obligations he was under to the deceased ? Whether those obligations or duties were implied by law or existed by express contract is immaterial, but that some duty, public or private, was
In Atlantic, Valdosta & Western Railroad Co. v. McDilda, 125 Ga. 468 (54 S. E. 140, 114 Am. St. R. 240), it was held that an action by a wife to recover damages for the negligent homicide of her husband is an action for an “injury done to the person,” and must be brought within two years from the date of the death of the husband. The court said: “We think it clear that in an action by a wife for the homicide of her husband, the gist of the action
In Spradlin v. Georgia Railway & Electric Co., 139 Ga. 575 (77 S. E. 799), a suit was brought by a husband against a railway company, to recover damages for certain injuries alleged to have been received by him as the result of the negligence of the defendant. The plaintiff died, and his administrator was made a party plaintiff. Subsequently and pending this suit the widow sued under the homicide statute. The first suit resulted in a verdict for the defendant, and was pleaded in bar to the suit by the widow. It was said by a majority of the court through Justice Beck, that our statutes “distinctly provide for two separate proceedings: (1) a carrying forward by the administrator of a common-law action already begun by the deceased; (2) a right to recover for the homicide by the widow, or children. In the former a recovery can be had for pain and suffering, lost time, physician’s bills, etc., accruing prior to the death of the injured person, but no recovery can be had for the ‘full value of his life.’ In the latter action a recovery can not be had for any of the damages recoverable in the former, but for ‘the full value of the life of the deceased,’ from the time of his death. The damages recoverable in one case are not recoverable in the other. . . True each action grew out of the same tort. . . It may be singular that two rights of action may grow out of the same transaction, and possibly one be lost and the other won, but that merely arises from the statute. . . A somewhat similar situation exists where a minor is permanently injured by the tort of another. His father may sue to recover for the loss of services of the minor until majority. The minor himself, by his next friend or guardian, may bring suit to recover for the permanent injury, not including the services for which his father may sue. See, in this connection, Augusta Railway Co. v. Glover, 92 Ga. 132 (4), 143 (18 S. E. 406); Augusta Factory v. Davis, 87 Ga. 648 (2), 649 (13 S. E. 577).” See Nashville, C. & St. L. Ry.
It appears from what has been said in some of the decisions cited above, that the construction of a homicide statute can not always be placed upon a purely logical basis, and we do not here express any opinion as to the ultimate correctness of these decisions; but it is apparent that in the conclusions reached the court has laid down contradictory premises. The confusion arises, no doubt, because the statute gives a right of action to others for a tort com^ mitted upon another, upon the death of the party upon whom th¿ tort is committed, and the idea of survival of a cause of action! thus rears its head to torment and bewilder the investigator approaching the matter of construing the statute. We may observe, however, that the right or> cause of action given by the statute differs in practically all particulars from a pure survival of the cause of action had by the deceased. It is true that it depends first upon the factum of an actionable tort having been committed upon the deceased, but the gist of the action is not the injury suffered by the deceased, but the injury suffered by the beneficiaries, resulting from the death of the deceased, which before the amendment of 1878 was the loss of support. The cause of action, while dependent upon the fact of an actionable tort against the deceased, accrues only by reason of the death. The damages recoverable are entirely different from those recoverable by the deceased upon the cause of action had by him, although in some instances proved by similar evidence. The beneficiaries are specifically named, and the recovery does not become a part of the estate of the deceased. In
In this connection it is contended by counsel for the plaintiffs that the decision of this court in Mott v. Central Railroad, 70 Ga. 680 (48 Am. R. 595), is controlling and adverse to the construction we have placed upon the statute. Before that decision it had been held that the words “child or children” as used in the statute included only minor children, in that “The measure of damage in such a case [suit by children for death of father] is the present worth of a reasonable support for them during minority.” M. &
Neither does the statute, by reason of the fact that no action could be maintained by the beneficiaries unless the deceased, had not death ensued, was entitled to maintain an action, give a right or cause of action by the beneficiaries in every case in which the deceased could have maintained an action had he lived. As we have already pointed out, our present statute contains no such provision as was contained in Lord Campbell’s act and in our act of 1850, purporting to give the beneficiaries a right to maintain an action in any case in which the deceased, had not death ensued, would have been entitled to maintain an action had he lived. In Western & Atlantic Railroad Co. v. Strong, 52 Ga. 461, this court said that while the right given by the statute to the beneficiaries is generally for the “homicide,” it “would seem to follow from the very nature of a wrong, and from the principles of justice and equity,” that cases of self-defense, inevitable accident, or of execution by command of law, etc., were not included within the term, but only cases where some duty, private or public, was violated; thus by construction limiting the broad terms of the statute. To say that the beneficiaries, by reason of this construction placed upon the statute, may not maintain an action and that none is given in any case where the deceased could not have maintained an action on the tort, is not the equivalent of saying that the beneficiaries could maintain and are given the right to maintain an action in every case where the deceased could have maintained one had he lived. One does not follow from the other; one limits the right of action, the other enlarges it. It is true that the statute now contains the following definition: “The word ‘homicide’ as used in this chapter shall include all cases where the death of a
Counsel for the plaintiffs cite, as persuasive authority, Robinson v. Robinson, 188 Ky. 49 (220 S. W. 1074), and Nosser v. Nosser, 161 Miss. 636 (137 So. 491). In the Robinson case, an action by the administrator of a deceased wife and mother against the father and husband, the court held that the action could be maintained for the benefit of the children to the extent to which they were entitled to recover, the statute providing that in suits for the death of a wife and mother one half of the recovery should go to the husband and one half to the children; and that the fact that the husband would not be entitled to half of the recovery did not defeat the action of the administrator on behalf of the children entitled to the other half, against the husband whose wrongful act caused the death. In the Nosser case an action was brought by the husband and one of two sons against the other son, for the death of the mother, caused by the negligence of the defendant. It was held by the court that under the statute of Mississippi the fact that one statutory beneficiary is the person charged as de
Does the statute, however, under the facts as alleged in the petition, give a right or cause of action against Mr. Thompson, the husband of Mrs. Thompson, alleged to be a joint tort-feasor? As to the negligence of Mrs. Thompson, there being no cause of action given by the statute as arising out of the tort committed by-her, no action could be maintained thereon against her husband under the family-car doctrine. While under that doctrine her negligence is imputable to him, such negligence is not actionable under the statute. The petition, however, seeks a recovery against Mr. Thompson upon acts of negligence committed by him. Whether or not the statute gives a right or cause of action at all against the husband of a daughter of a deceased father, when the homicide is caused directly and proximately by the joint negligence of the daughter and her husband, it is not necessary to decide; this for the reason that if a cause of action is so given, it is given to all of the children of the deceased father, and not to a part of them. lit Williams v. Western & Atlantic Railroad Co., 142 Ga. 696 (83 S. E. 525), a mother brought an action against the railroad company to recover for the homicide of her son, under the Code, § 66-401, which declares that every common carrier shall be liable in damages in case of the death of any employee, to his or her personal representative, “for the benefit of the surviving widow or husband, or child or children of such employee; and if none, then of such employee’s parents; and if none, then of the next of kin dependent
The ruling in City of Elberton v. Thornton, 138 Ga. 776 (76 S. E. 62, Ann. Cas. 1913E, 994), is no cause for a different ruling. In that case an action was brought by the children of a deceased father, to recover for his homicide, and it appeared that the mother had survived the father and had not brought an action prior to her death. The court held that by the terms of the statute a cause of action was given to both the mother and the children; and that while the right to sue was primarily in the widow, if there was one, her death without instituting suit did not abate the action. There was no ruling that the widow and children had a joint cause of action; and no question of joinder was involved — only a question whether the death of the widow abated the cause of action. The plaintiffs contend that since Mrs. Thompson herself was jointly responsible with her husband for the death of the father, it is not necessary to join her as a party plaintiff, citing as authority Phillips v. Poole, 96 Ga. 515 (23 S. E. 504), where this court held that where three persons jointly contract for the purchase of land, and the seller breaches the contract, neither one of the purchasers may maintain an action without joining therein the other purchasers, unless some good reason for the failure to do so, such as death or refusal to join, is alleged; and Bernstein v. Fagelson, 38 Ga. App. 294 (143 S. E. 237), where it was held
Judgment reversed.