Dellinger v. Elm City Cotton Mills

107 S.E. 264, 26 Ga. App. 780, 1921 Ga. App. LEXIS 634

• Court: Court of Appeals of Georgia
• Decided: May 2, 1921
• Docket: 12120
• Status: Published

Opinion

Hni, J.

Under the Civil Code (1910), § 4424, which 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,” the right to bring the action is primarily in the mother, and the father has no right of action if the mother is in life when the homicide occurs. Therefore, when a father brings a suit for the homicide of his son, to recover damages for the full value of the son’s life, and the petition fails to allege that the mother was dead at the time of the homicide, no cause of action is shown in the father. Eor this reason the petition in this case was properly dismissed on demurrer. Direction is given that the plaintiff be allowed to amend the petition by making the necessary allegation as to the death of the mother. Bilbro v. Jones, 102 Ga. 161 (29 S. E. 118) ; Robinson v. Georgia Railroad Co., 117 Ga. 168 (43 S. E. 452, 60 L. R. A. 555, 97 Am. St. Rep. 156) ; Frazier v. Georgia R. Co., 96 Ga. 785 (22 S. E. 936).

The assignments of error as to the judgment on the special demurrers are not passed upon.

Judgment affirmed uRth direction.

Jenlcms, P. J., and Stephens, J., concur.