Opinion
37447.
DECIDED JANUARY 23, 1959. REHEARING DENIED FEBRUARY 3, 1959.
Action for damages. Baldwin Superior Court. Before Judge Carpenter. September 13, 1958.
George S. Carpenter, Jr., Erwin Sibley, for plaintiff in error.
James M. Watts, contra.
Charles J. Bloch, James M. Sibley, Spalding, Sibley, Troutman, Meadow Smith, Cumming, Nixon, Eve, Waller Capers, as amicus curiae.
1. The exclusion of interpretation, where none is needed, may be stated to be, notwithstanding the absurdity which it involves, the first rule of construction. Neal v. Moultrie, 12 Ga. 104, 110.
2. No discussion is necessary in disposing of numerous grounds of special demurrer, insisted on here only in general terms, and where the pleading attacked is obviously subject to none of the criticisms made by the special demurrers.
DECIDED JANUARY 23, 1959 — REHEARING DENIED FEBRUARY 3, 1959.
Mrs. Estella J. Tucker sued Central of Georgia Railway Company in the Superior Court of Baldwin County. The petition was in two counts. The first count, as amended read in part: Count 1. Plaintiff is the mother of Katherine Elizabeth Tucker, who was 4 years old at the time of her death on April 18, 1958; Central of Georgia Railway Company, herein named defendant, is a railroad company operating one or more lines of track in Baldwin County, Georgia; the cause of action herein asserted originated in Baldwin County and defendant has an agent in Baldwin County upon whom service of process may be perfected; defendant maintains and operates daily a train over a line of track running generally in an east-west direction through the community of Harrisburg in Baldwin County; this railroad line is crossed by a public dirt road generally known as the Harrisburg Road; the area to the east of this intersection and public crossing has the following characteristics: (a) the railroad line itself is straight and relatively level for a distance of approximately 1000 feet to the east; beyond this straightaway the line curves gradually to the north; (b) approximately 300 feet to the east of the intersection there is located on the south side of the railroad line a milepost numbered as S-185; (c) the engineer and fireman of a train proceeding in a westerly direction, as was the train in the instance hereinafter described, would have a clear and unobstructed view of this milepost and of the area immediately to the east thereof for a distance of at least 1000 feet; (d) approximately 1600 feet to the east of the intersection there is located on the north side of the railroad line a blowpost as required by Section 94-506 of the Code of Georgia; (e) at milepost S-185 and for at least 150 feet on either side thereof, the railroad line is located upon a fill which is approximately 30 feet above the level of the adjoining land to the south and north; there is a steep embankment on either side, heavily covered by thick vines and other such growth; the width of the fill is sufficient only to permit a train traveling upon the line to pass; (f) beginning at about the point where the line begins to curve to the north (that is, proceeding in an easterly direction from the intersection) and beyond, there are located to the north of the railroad line approximately a dozen homes; no road or other means of travel directly connects the intersection with this settlement except the railroad track above described; for many years persons traveling on foot between the settlement and the intersection have made use of the railroad track for this purpose; this use has been known by defendant, by and through the train crews of its trains which have operated daily over this line, and defendant has registered no objection and has made no effort at any time to prevent or discourage the use by persons in the vicinity of the railroad track and line for this purpose; on April 18, 1958, at approximately 6 p. m., petitioner's minor daughter, Katherine Elizabeth, aged 4, without petitioner's knowledge, wandered out onto the railroad track in the immediate area of milepost S-185; a train of defendant's which was being operated by an engineer and fireman and other agents and employees of defendant whose names are unknown to petitioner but well known to defendant, was at the time traveling in a westerly direction on the line of track above described; when the train was approximately 1000 feet to the east of milepost S-185 in the area of which petitioner's minor daughter was situate, the engineer and fireman on defendant's train had a clear and unobstructed view of petitioner's daughter; the engineer and fireman then and there actually discovered her presence on the tracks ahead; it was apparent or should have been apparent to the engineer and fireman that petitioner's minor daughter was a child of tender age, and that because of her age and because the track at the point where she was situated was located on a high and narrow fill, the minor was then and there in a dangerous and perilous position; the duty immediately devolved upon the engineer and fireman to use every means available to avoid running down and killing petitioner's minor daughter; if they had exercised care under these circumstances the minor would not have been injured; the employees of the defendant failed, however, to immediately blow the whistle and to ring the bell when they first discovered the presence of the minor; they failed immediately to stop or slow the train sufficiently to avoid striking her; and they failed to take any other steps sufficient to avoid running her down; the train struck petitioner's minor daughter at a point on the track approximately thirty feet on the easterly side of milepost S-185 thereby crushing her and resulting in her death shortly thereafter; after striking petitioner's daughter the train continued to travel west until it had reached and crossed the Harrisburg dirt road and had traveled at least 1000 feet beyond the dirt road; petitioner's daughter had a life expectancy at the time of her death of 50.76; petitioner shows that the full value of the life of her deceased daughter is $50,000; the negligence of defendant's agents and employees was the direct and proximate result of the injury to and death of petitioner's daughter; the defendant's employees were negligent in the following particulars: (a) in failing, after the presence of petitioner's minor daughter was discovered, immediately to blow the whistle and ring the bell to warn the minor; (b) in failing, after the presence of petitioner's minor daughter was discovered, immediately to stop or slow the train sufficiently to avoid striking the minor; (c) in otherwise failing, under the circumstances herein described to avoid striking and killing petitioner's minor daughter.
The second count was identical with the first except that it omitted the averment of count one in reference to the specific acts of negligence attributed to the defendant's servants and in lieu thereof contained other specifications of negligence and allegations in reference to the duty of those in charge of the engine to have anticipated the presence of the plaintiff's child on the railroad track. This portion of count 2 read: by reason of the facts set forth above, the engineer and fireman of defendant's train were under the duty of anticipating the possible presence of persons upon the track at or near the point where petitioner's minor daughter was situate; that the train was being operated at a high and unreasonable rate of speed under the circumstances, to wit; in excess of 50 miles per hour, as it rounded the curve immediately to the east of the straightaway hereinabove described; the negligence of the defendant, by and through its agents and employees, was the direct and proximate cause of the injury to and the death of petitioner's minor daughter; the agents and employees were negligent in the following particulars: in failing to anticipate the presence of petitioner's minor daughter upon the track; in failing to operate the train at a reduced and safe rate of speed under the circumstances herein described; in failing before reaching the straightaway to blow the whistle or sound the bell or give other warning to persons who might be located upon the above described straightaway; in failing to actually discover the presence of petitioner's minor daughter immediately upon rounding the curve to the east of the straightaway; in failing to give any warning to petitioner's minor daughter immediately after her presence on the track was or could have been discovered; in failing after the presence of petitioner's daughter was or could have been discovered, to stop or slow the train sufficiently to avoid striking the minor; in otherwise failing, under the circumstances herein described, to avoid striking and killing petitioner's minor daughter.
The defendant's demurrer to the petition as amended was overruled and to this ruling exception was taken.
1. The railroad company demurred generally to the petition and insists the petition set forth no cause of action because its averments affirmatively revealed the plaintiff had no right to bring the suit.
The plaintiff mother sued for the homicide of her four-year-old daughter, and the action was brought under the provisions of Code (Ann.) § 105-1307 which confers upon parents the right to sue for the value of the lives of children, prescribes the manner in which the right vests and the limitation upon the rights of the parents to institute suits of that nature.
It is the railroad company's position that Code (Ann.) § 105-1307 permits the parent to sue for the value of the child's life, only in the event the child has attained marriageable age, that is the age when marriage may be lawfully contracted. The Code section reads: "A mother, or, if no mother, a father, may recover for the homicide of a child, minor or sui juris, unless said child shall leave a wife, husband or child. The mother or father shall be entitled to recover the full value of the life of such child. In suits by the mother the illegitimacy of the child shall be no bar to a recovery."
The railroad company in a splendidly prepared brief recites rules and cites numerous authorities applicable to the construction of an ambiguous law. The discussion of these matters we have read with interest, but they have no application to the above quoted Code section, which is couched in plain, unambiguous and explicit language. It needs no interpretation for its meaning is plain and susceptible to no other meaning than that its language expresses with perfect clarity.
The ancient rule frequently repeated in reported cases is that where the language of a statute is plain, it is not open to construction. Standard Oil Co. of Ky. v. State Revenue Commission, 179 Ga. 371, 375 ( 176 S.E. 1); Twentieth Century-Fox Film Corp. v. Phillips, 76 Ga. App. 825 (3) ( 47 S.E.2d 183); Fulton County Employees Pension Board v. Askea, 95 Ga. App. 77 ( 97 S.E.2d 389). Had the Code section been ambiguous the question of its meaning would not be open for decision, since in the case of Porter v. Lassiter, 91 Ga. App. 712 ( 87 S.E.2d 100) it was held that a parent had the right, under its provisions, to use for the death of an unborn child.
Obviously the only exception to the right of the parent to bring an action for the value of the child's life has no reference to the child's age, but simply provides that in the event the child is married his wife and children have the exclusive right to sue for the value of his life. The statute does not provide any other limitation upon the right of the parent to sue for the value of the child's life and no other exception can be read into it.
2. We have carefully reviewed the rulings of the trial court on the special grounds of demurrer directed against the several paragraphs of the petition. These demurrers, not argued in the brief of counsel for plaintiff in error, but insisted upon generally, asserted that the paragraphs attacked were vague and constituted mere conclusions.
The brief of the amicus curiae suggests that the provisions of Code (Ann.) § 105-1307 do not provide a measure of damages that can legally be applied in assessing damages for the death of a child of tender age, because the Code section does not prescribe a manner in which the exact value of the child's life can be ascertained. The fallacy of the argument is apparent. The familiar postulate of the law of evidence is "mathematical certainty is not attainable in legal investigation; the law neither expects nor requires it." There is no suggestion in the Code section that the parents of the child be permitted to recover for mental anguish, and the petition does not predicate the right of recovery in this case on that premise.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.