Trammell v. Southern Ry. Co.

182 F. 789, 105 C.C.A. 221, 1910 U.S. App. LEXIS 4975

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 1, 1910
• Docket: No. 2,025
• Status: Published

Opinions

PER CURIAM.

This is a suit brought by the mother to recover damages for the homicide of a child, under section 3828, Code Ga. 1895. After taking the evidence, the trial judge charged the jury as follows:

“Gentlemen: This suit is brought under a statute of Georgia, which reads as follows: ‘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 leaves a wife, husband or child.’ This statute has been construed by the Supreme Court of Georgia to read ‘upon whom she or he is dependent and who contributed to his or her support.’ In other words, they hold that there must be both dependence upon the child, and he must have contributed to the support of the parent who sues.

“I do not think the facts of the present case bring it within this statute. I do not think that Mrs. Trammell has shown herself able to bring this suit under the statute. She has not shown, in my opinion, that she was dependent upon this child that was killed, or that he contributed to her support. Under the law, it is the duty of the husband to support the wife, and under all the evidence here it appears that Dr. Trammell, the husband and father, was doing this in the amplest manner. It is true that the boy worked in the drug store and helped his father in that way, but I do not think that the services rendered in this way to the father can in this indirect manner be held to be a contribution from the boy to the support of his mother. But, whether this be true or not, it cannot be said in any fair sense, under the evidence, that she was dependent on him for support, for, in any view of the evidence in this case, the husband was abundantly able to support her. I do not think this statute was over intended to cover a case like this. It was intended to authorize a recovery by the mother, or, if no mother, by the father, where there was actual dependence, to some extent at least, upon the child for support. I do not believe under the evidence that this fact has been established in this case. This being true, it becomes the duty of. the court to control the matter. If I believed there was evidence which would authorize you so to find, I would submit the matter to you for your determination; but, believing there is no such evidence, it becomes my duty to control the matter, and consequently I direct you to return a verdict for the defendant.”

On consideration of the evidence, we concur with the trial judge as to the force and effect thereof, and we find no error in the instructions given to the jury, as the dependence proved is too fanciful and remote to come within the statute.

Judgment affirmed.