No fixed, definite rule can be laid down which would be applicable in all cases, but each case must depend upon its own peculiar facts. In Scott v. Torrance, supra, [ 69 Ga. App. 309, 25 S.E.2d 126], the Court stated, "* * * [S]ervices of a child to a mother or of a mother to a child may well be reckoned as contributing substantially to the support of the recipient far beyond any money value which the services may have, and the chief element of dependence may be in respect to personal services of that nature." Central of Ga. Ry. Co. v. Henson, 121 Ga. 462, 49 S.E. 278, and cases cited; Savannah Elec. Co. v. Bell, supra; Indian Springs Swimming Pool Corp. v. Maddox, 70 Ga. App. 842, 29 S.E.2d 724.
(Citations and punctuation omitted.) Scott v. Torrance, 69 Ga. App. 309, 319-320 (3) ( 25 S.E.2d 120) (1943). See also Eason v. Crews, 88 Ga. App. 602, 613 (1) ( 77 S.E.2d 245) (1953); Helmly v. Savannah Office Bldg. Co., supra at 499.
By the alleged arrangements made in the present case, the plaintiff not only was relieved of her duty to support her infant child, but she also received sums of money for the services rendered by her son to her brother and sister-in-law. "It is clear from the authorities that the words `dependent' and `contributes' in the statute are flexible words and are to be differently interpreted in different sets of facts, and, except in clear and unusual cases, it is for the jury to decide whether a plaintiff has brought herself within the terms of the section when she has concluded her evidence." Scott v. Torrance, 69 Ga. App. 309, 318 ( 25 S.E.2d 120). Under the allegations of the present petition, it would be a question for a jury as to whether or not the plaintiff's son was substantially and materially contributing to his mother's support, and whether she was wholly or partially dependent upon him therefor, at the time he was killed. The petition was not subject to general demurrer because it failed to allege that the child was legitimate.
The question of dependency is one of fact in this particular case, and should have been left to the determination of the jury. See Smith v. Travelers Ins. Co., 71 Ga. App. 24, 26 ( 29 S.E.2d 709); Scott v. Torrance, 69 Ga. App. 309 ( 25 S.E.2d 120); Sovereign Camp of the Woodmen of the World v. Warner, 25 Ga. App. 449 ( 103 S.E. 861). The question remains, however, whether or not the petition sufficiently alleged that the husband was dependent upon the plaintiff wife.
2. The second special ground is not good because other evidence, similar to that which was objected to and admitted by the court, was afterwards introduced without objection in the testimony of other witnesses. Shepherd v. State, 67 Ga. App. 448 ( 20 S.E.2d 446); Atlanta Enterprises v. James, 68 Ga. App. 773 ( 24 S.E.2d 130); Scott v. Torrance, 69 Ga. App. 309, 325 (8) ( 25 S.E.2d 120). This ground is incomplete also in that the name of the witness is not shown in the ground ( Trammel v. Shirley, supra). 3. The third special ground is without merit because an assignment of error on the allowance of an amendment to a petition can not be the basis of a ground in a motion for a new trial.
We do not think we can hold as a matter of law, under the facts of this case, that the claimants were not partially dependent upon their son for support. In Scott v. Torrance, 69 Ga. App. 309 ( 25 S.E.2d 120), this court said: "It is clear from the authorities that the words `dependent' and `contributes' in the statute are flexible words and are to be differently interpreted in different sets of facts, and, except in clear and unusual cases it is for the jury to decide whether the plaintiff has brought himself within the terms of the section, when she had concluded her evidence." That case was not under the Workmen's Compensation Act, but the principle is the same. If there be any difference, it is to the effect that the scope and policy of the Workmen's Compensation Act requires a more liberal application.
Georgia Ry. Power Co. v. Bryans, 35 Ga. App. 713 ( 134 S.E. 787). See also in this connection, Brooks v. Carver, 55 Ga. App. 362 ( 190 S.E. 389); Southern Ry. Co. v. Blanton, 59 Ga. App. 252 ( 200 S.E. 471); Scott v. Torrance, 69 Ga. App. 324 ( 25 S.E.2d 120). I think the errors require a new trial.
See also Bratt v. Western Air Lines, 169 F.2d 214 (C.C.A. 10th 1948), where it was said (at p. 217) that "where several persons are injured in the same accident, a compromise with one cannot be shown in an action by another." And see Scott v. Torrence, 25 S.E.2d 120 (Ga. App. 1943), where it was held that statements of a witness, who had sustained injuries in an accident that he had received payment therefor, were properly excluded. The case of Snyder v. Kenan Oil Co., 68 S.E.2d 805 (N.C. 1952), relied on by the appellants, is clearly distinguishable on the facts.
Since the opinion of Weiss v. Kohlhagen, supra, was written, the courts generally have, as a matter of public policy to encourage and not discourage compromises and settlements which the law favors, held inadmissible evidence to the effect that a defendant in a negligence action has paid third parties on claims arising from the same transactions for the purpose of showing an admission of liability. The case of Howland v. Bartlett, supra, was overruled by the Georgia case of Scott v. Torrance, 69 Ga. App. 309, 25 S.E.2d 120; the case of Campbell v. Missouri Pacific R. Co., supra, was overruled by the case of Pfiffner v. Kroger Grocer Baking Co., (Mo.App.) 140 S.W.2d 79; and, while the New Hampshire cases seem to be in a state of flux, they seem to hold that if the matter is called to the attention of the court, the trial court must first determine whether the settlement was made with a third person as a compromise of a claim, the validity of which was denied by the defendant, or as an admission of liability, and if the trial court determines the payment was an admission of liability and not the compromise of a denied liability, it becomes admissible. Gault v. Concord R. Co., 63 N.H. 356.
When the circumstances under which the signed statement was procured are considered, we think that it would have constituted a violation of the statute to have held that though the written statement signed by the driver was privileged, the oral statements shown by the evidence to have formed the basis for the written statement did not enjoy such immunity. McBride v. Stewart, 227 Iowa 1273, 290 N.W. 700; Vandell v. Roewe, 232 Iowa 896, 6 N.W.2d 295; Bachelder v. Woodside, 233 Iowa 967, 9 N.W.2d 464; State v. Williams, 238 Iowa 838, 28 N.W.2d 514; Scott v. Torrance, 69 Ga. App. 309, 25 S.E.2d 120. The appellants rely on certain California cases cited in their brief to support their position that error was committed in excluding the proffered testimony of the witness Randell, but in our opinion the cases cited are either not in point or are easily distinguishable on the facts.