Western & Atlantic Railroad v. Anderson

34 Ga. App. 435 | Ga. Ct. App. | 1925

Bloodworth, J.

On May 1, 1922, Ernest G. Harris was killed by a train of the defendant. His mother brought suit for damages against the defendant under the following provision of section 4424 of the Civil Code of 1910: “A mother, or, if no mother, a father, may recover for the homicide of a child minor of 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.” On the trial the mother testified in part as follows: “My son didn’t contribute anything to my support during the whole year of 1921, and he died on the first day of May, 1922. . . I was living in Decatur with my two single daughters. . . My two daughters and I live in the house together and keep house together, us three, and these two girls work out. . . We three staid there and kept house together and I lived off the common fund of my daughters and contributed what labor I could. . . I never asked him (deceased) for anything in 1921. I was dependent upon my daughters for support; and in 1922 I depended upon my daughters for support other than the $45 that he gave me, and the $25 that he paid for my glasses, and paying for those shoes.” The mother further swore that these gifts to her were made “four months before he died.” The record further shows, that, beside the gifts just mentioned, the deceased made no contribution to his mother’s support for the sixteen months immediately preceding his death. The principle announced in Smith v. Hatcher, 102 Ga. 158 (29 S. E. 162), is controlling in the case we are now considering, and we have adopted the first headnote in that ease as the headnote in this one. In the opinion in that case (p. 160) the Supreme Court said: “This court in Clay v. Central R. & Banking Co., 84 Ga. 345, held that the word 'or/ after the word 'dependent/ should be construed to mean 'and.’ Therefore, in order to entitle a parent to recover, it must appear that he, or she, is dependent on the child, and that the latter contributes to the parent’s support. Special attention is called to the use of the verbs 'is’ and 'contributes/ in the present tense. The law does not, therefore, mean that a parent may recover for the homicide of a child upon whom he, or she, has leen dependent, and who has contributed to the parent’s support; nor for the homicide of a child upon whom the parent might, at some future time, become dependent, and who might, but for the homicide, have contributed to the parent’s support. The test is applied at the time of the death. The actual condition at that time is to be looked to. Neither the past nor the uncertainties, nor the possibilities, of the future, are to be considered.” In Fuller v. Inman, 10 Ga. App. 688 (74 S. E. 391), Judge Pottle said: “The statute contemplates present support. It does not deal with the past or future. The child must have been actually contributing to the support of the parent at the time of its homicide, and the parent must have been dependent, either wholly or in part, upon the child at that time, in order to authorize a recovery.” The evidence for the plaintiff fails to show that at the time of the death of her son she was dependent upon him, and that he was at that time contributing to her support. See Augusta Southern Railroad Co. v. McDade, 105 Ga. 134 (7),

Judgment reversed.

Broyles, C. J., and Luke, J., concur.

138 (7) (31 S. E. 430).