David v. Southwestern Railroad

By the Court— McCAY, J., delivering the opinion. As we said in Johnson v. Macon and Western Railroad, 38th Georgia, 433, the language of the section 2920 of the Code, under which suit is broüght, is not so clear as the importance of the subject demands. It is clear to us, however, that the object of the Act is to give a remedy to the widow, and, if there be no widow, or if she die before the question is settled, then to the children. It is sticking in the bark to say that nothing survives to the children but the “action.” The “action” is but an incident, a means of getting a right. It is the right of action [225] that goes over to the children on the death of the mother. The only question, as it seems to us, is the measure of damages in the action by the children. We do not think it is the mother’s right which the statute gives to the children. If the mother die before final judgment, we think the intent of the Act was to give the children a right to sue, as though there had been no widow at first. They sue in such a case for the damage to them. We decided in 38th Georgia, 433, that if the widow sued, the measure of damages was the present worth of a reasonable *support for herself, according to the expectation of the husband’s life, in view of his condition in life, etc. The same rule ought to be applied when the children sue. The measure of damages in such a case, is the present worth of a reasonable support for them during minority, according to the expectation of the father’s life,, in view of his condition of life, prospects, industry, etc., etc. We think upon the whole, this best conforms to the words and the intent of the Act, although, as we have said, the meaning is not as clear as it ought to have been. Judgment reversed.