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for his wrongful or negligent homicide? That section reads as follows: "A widow, or, if no widow, a child or children, may recover for the homicide of the husband or parent; and if suit be brought by the widow or children, and the former or one of the latter dies pending the action, the same shall survive in the first case to the children, and in the latter to the surviving child or children. The husband may recover for the homicide of his wife, and if she leaves child or children surviving, said husband and children shall sue jointly, and not separately, with the right to recover the full value of the life of the deceased, as shown by the evidence, and with the right of survirorship as to said suit if either die pending the action. 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 180 child leave a wife, husband, or child. Said mother or father shall be entitled to recover the full value of the life of said child." In seeking for the true meaning of this section as to the question under consideration, we must be guided by two firmly established and familiar rules of construction: 1. That statutes in derogation of the common law are to be strictly construed; and 2. That, prima facie, the word "child,” or "children," when used in a statute, will, or deed, means legitimate child or children; in other words, bastards are not within the term "child" or "children." This court on several occasions, in construing this very section, has applied to it the first of these rules. In Smith v. Hatcher, 102 Ga. 158, 29 S. E. 162, it was held: “It is essential to the maintenance of an action by a parent for the homicide of his child that the former should, at the time of the homicide, be to a material extent dependent upon the latter for a support, and that the child should then be actually contributing thereto." In the opinion Lumpkin, P. J., said: "The statute giving a right of action to a parent for the homicide of a child, and conferring upon the former the right to recover the full value of the child's life, is, to say the least, a harsh one, and must be strictly construed.” Substantially the same language is used by the learned justice in Georgia R. R. Co. v. Spinks, 111 Ga. 573, 36 S. E. 835. In Marshall 5. Macon Sash Co., 103 Ga. 725, 68 Am. St. Rep. 140, 30 S. E. 571, it was held: “A child has no right of action for the homicide of its stepfather.” In that case it was alleged that the plaintiffs were the only heirs of their stepfather, he having left no widow and no other children; that he mar

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ried the mother of the plaintiffs eight years prior to his death, and from the time of such marriage to the date of his death he maintained and supported the plaintiffs as his children, rearing them in his own home, feeding, clothing, and schooling them, and exercising over them complete parental control, by consent of their mother and themselves; and that such relation continued up to the date of his death, up to which time he not only contributed to their support, but they were entirely dependent upon him for a livelihood. The action was dismissed on general demurrer. Mr. Justice Lewis said: “The right of action provided for in the above code section (3828] did not exist at common law. The statute is, therefore, in derogation of the common law; and applying to it the universal rule of strict construction, we cannot see how there is any escape from the conclusion 170 that the legislature never contemplated giving a child any right of action for the homicide of a stepfather.”

Instances of the application by this court of the second of these rules of construction are Hicks v. Smith, 94 Ga. 809, 22 S. E. 153, Floyd v. Floyd, 97 Ga. 124, 24 S. E. .451, and Johnston v. Taliaferro, 107 Ga. 6, 32 S. E. 931. In the first of these cases it was held: “Where, by the provisions of a will made by the great-grandfather of a bastard on the paternal line, an estate is vested in the father of a bastard for life with re mainder over to his children, and, he failing issue, remainder over in fee to other great-grandchildren of the testator, upon the death of the father of such bastard without issue other than such legitimated bastard, while the latter, by force of the statute, may take by descent from his father, he cannot take by purchase under the will of his great-grandfather, which devises the estate to his great-grandchildren generally, there being in the will no language expressly indicating a purpose to include within the scheme of his benevolence any bastard descendants.” Mr. Justice Atkinson, in that case, said: “The word "children,' as a general rule, means legitimate children, and will not be extended by implication so as to embrace children other than legitimate, unless such construction be necessary to carry into effect the manifest purpose of the testator.” In the second case it was held: "The term “child,' as employed in section 2664 of the code, does not include a bastard so as to entitle him to the benefits of its provisions, and the conclusive presumption of a gift resulting from continuous possession, under the circumstances therein set forth, arises only in favor of legitimate

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children.” In the opinion Chief Justice Simmons said: "It is well settled that at common law the words 'child' and 'chile dren' mean only legitimate child and children.” In the third case it was held: "The words 'child' and 'children,' appearing in a deed conveying to an unmarried female certain property during her life, and at her death to such child or children as she

may leave living at the time of her death, will not include an illegitimate child of such female born several years after the making of the deed, unless it plainly appears from the language of the instrument that it was the intention of the grantor that an illegitimate child was to take thereunder. The word issue,' used in a subsequent part of the deed under consideration in the present case, is to be given the same meaning as the words "child' or children.' ” Mr. Justice Cobb, in delivering 191 the opinion, said: “The words children' and 'issue' in deeds, wills, and other conveyances must be held to mean legitimate children or issue, unless the context is such as to require a different meaning, or the circumstances surrounding the execution of the paper are such as to make the words import other than legitimates": 107 Ga. 20, 32 S. E. 937.

The exact question we have in hand has been decided by courts in other jurisdictions, and upon the application of the two rules of construction under discussion. In Dickinson y. Northeastern Ry. Co., 2 Hurl. & C. 735, it was held that the word “child,” in section 2 of 9 & 10 Victoria, chapter 93 (Lord Campbell's act, which is the prototype of our statute), means a legitimate child; and that an action could not be maintained on behalf of a bastard child against a railway company for the homicide of its mother. Counsel for the plaintiff in that case contended that the case was within the spirit of the act, for beyond question the child was dependent solely on the mother, and that the act must mean any child who was deriving pecuni. ary advantage, and is deprived thereof by the death. Pollock, C. B., said: “We have no doubt that in the act of parliament, as in all others, the word 'child' means 'legitimate' child only." In Gibson v. Midland Ry. Co., 2 Ont. 658, it was held, under & statute of Ontario similar to Lord Campbell's act, the mother of an illegitimate child could not recover damages for its death, To the same effect is Clarke v. Carfin Coal Co. (Scotland), (1891] App. Cas. 412. In Harkins v. Philadelphia etc. R. Co., 15 Phila. 286, it was held: “The mother of an illegitimate child is not within the words or meaning of the act of April 26, 1855, which enacts that the persons entitled to recover damages for any

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injury causing death shall be the husband, widow, children, or parents of the deceased, and no other relative.'” In his opinion, Thayer, P. J., after citing Dickinson v. Northeastern Ry. Co., 2 Hurl. & C. 735, said: “The line of argument adopted hy the plaintiff's counsel in that case was much the same as that pursued by the plaintiff's counsel in the present case, viz., that the legislature intended the right of action to be coextensive with the moral right to support; that, for many purposes, the law recognizes the relationship of a bastard child to his parent; and that, therefore, the question of legitimacy or illegitimacy is immaterial. But we are not convinced by this reasoning. 172 It is true that some rights have been accorded by statute to illegitimate children and their mothers which did not exist at common law. The act of 27th of April, 1855, section 3 (Purdon's Digest, 810), enacts that illegitimate children shall take the name of the mother, and that they and the mother respectively shall have capacity to take or inherit from each other personal estate as next of kin and real estate as heirs, but this act conferred only limited powers upon persons of this description. It did not legitimate illegitimate children, and it was so ruled by the supreme court of this state," citing cases. In conclusion the learned justice said: "In addition it may be observed that, by the act of 26th of April, 1855, the right of action is given, not to the mother alone, but to the 'parents' of the deceased. If the effect of the act of 27th of April, 1855, were to legitimate bastards for all purposes, and to give to them and their natural parents the standing in all respects which the law accords to lawful children and lawful parents, then the natural father would equally with the natural mother be within the enabling words of the act. We do not think this to have been the purpose of the law, but are of the opinion that the legislature, in enacting the act of 26th of April, 1855, and when using the words 'husband, widow, children, parents of the deceased, and no other relative,' had in view the family relation as constituted and recognized by law, and that it was not intended to extend the benefits of the act to persons not falling within the legal definition of the enumerated relationships.” In Alabama etc. R. R., Co. v. Williams, 78 Miss. 209, 84 Am. St. Rep. 624, 28 South. 853, it was held: “A mother cannot maintain an action for damages caused by the wrongful killing of her bastard son," citing Illinois etc. R. R. Co. v. Johnson, 77 Miss. 727, 28 South. 1753, where it was held that an illegitimate half-sister cannot maintain an action under a statute of Mississippi entitling a

sister or brother to sue for the homicide of a sister or brother. In further support of the proposition that the right of action for a negligent or wrongful homicide is purely a statutory one and in derogation of common law, and that therefore the statute giving the right must be strictly construed and the case brought clearly within its provisions to enable the plaintiff to recover, we select from a number of cases the following: Good 5. Towns, 56 Vt. 410, 48 Am. Rep. 799, wherein it was held: “Under the civil damage act, giving an action to one 'dependent on the deceased, a plaintiff claiming to be his 173 widow must show a lawful marriage, and one claiming to be his child must show his legitimacy." Rowell, J., said: “It is true, as contended, that the language of the statute is broad, ‘in any man

ner dependent; but after all we think it should be construed Othe

to mean a legal dependency only, the same as though it read, ‘in any manner legally dependent.'” Dickinson v. Northeastern Ry. Co., 2 Hurl. & C. 753, was approvingly cited. Thornburg 1. American Strawboard Co., 141 Ind. 453, 50 Am. St. Rep. 334, 40 N. E. 1062, wherein it was held that a statute giving a father a right of action for the homicide of his child confers no right upon one who marries the mother of a bastard child, and receives the child into his home as a member of his family, to sue for the death of the child. McDonald v. Pittsburg Ry, Co., 144 Ind. 459, 55 Am. St. Rep. 185, 43 N. E. 447, in which it was held a bastard is not a child within the meaning of the

statute of Indiana providing that a father may maintain an 30! sction for the death of a child. It appeared in that case that

the plaintiff, when the child for whose death the action was brought was six months old, received him from his mother and relieved her of his care and custody, and acknowledged him as his own son, and afterward discharged every duty as a parent toward him, and received from him all the services, obedience, and respect due from a legitimate son, and that his mother abandoned him and was dead, and that the deceased had no guardian or next of kin. The plaintiff's action was dismissed on demurrer. Citizens' St. Ry. Co. v. Cooper, 22 Ind. App. 459, 72 Am. St. Rep. 319, 53 N. E. 1092, in which it was held: “The right of a father or mother to recover damages for the wrongful killing of a child is statutory, and such an action cannot be maintained by a woman, where she is not the mother and has not legally adopted the child, although it was given to her in infancy, and she had ever since maintained and treated it as her own." Western Union Tel. Co. v. McGill, 57 Fed. 699,

Am. St. Rep., Vol. 97–11

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