Jones v. Seaboard Air-Line Railway Co.

162 S.E. 305, 44 Ga. App. 604, 1932 Ga. App. LEXIS 415

Opinion

Beix, J.

1. “Under the Civil Code (1910), § 4424, as amended by the act of 1924 (Acts 1924, p. 60), children of a widowed mother, whether minors or adults, have a right of action for the tortious homicide of their mother. . . If the mother is not a widow, but leaves a husband and children, the husband and children have a joint cause of action for the tortious homicide of the mother. The statute restricts the right to sue for such homicide to the husband and children jointly, and forbids separate action.” Hood v. Southern Railway Co., 169 Ga. 158 (149 S. E. 898).

2. The case is not altered by the fact that the father of the children, who was the husband of the decedent, had deserted his family and had contributed nothing to their support for a long period before the homicide. See, in this connection, Central of Georgia Railway Co. v. Bond, 111 Ga. 13 (5) (36 S. E. 299). Anything said to the contrary in Denham v. Texas Co., 19 Ga. App. 662 (91 S. E. 1070), was an obiter dictum, and is not binding. Moreover, the decision of the Supreme Court in the Hood case, supra, would supersede the decision by this court in the Denham case, if the rulings could be said to conflict.

Decided January 18, 1932. A. F. Lee, Thomas F. 8cott, for plaintiffs. Colquitt, Parker, Troutman & Arkwright, Tye, Thomson & Tye, contra.

3. Since the decision in the Hood case was rendered on a certified question and appears to control the case at bar, this court declines to certify the question presented in the instant case. The court did not err in sustaining the demurrer and dismissing the petition.

Judgment affirmed.

Jenkins, P. J., amd Stephens, J., concur.