Where the negligence of the daughter of the plaintiff and her deceased husband caused the death of the deceased, an action by the widow will not lie against the daughter's husband, under the family-car doctrine, for damages for the homicide of the deceased husband under Code § 105-1302, because this statute contemplates recovery only when the tortfeasor is a person outside of the named members of the decedent's family, i. e., "a widow, or, if no widow, a child or children."

DECIDED OCTOBER 4, 1961 — REHEARING DENIED OCTOBER 18, 1961.

Mrs. O. M. Walden sued W. L. Coleman for damages, under the family-car doctrine, for the death of her husband, O. M. Walden, alleged to have been caused by the negligence of the defendant's wife, Marion W. Coleman. The defendant's plea alleged that his wife, Marion W. Coleman, was the daughter of the plaintiff and her deceased husband, and that in the event of a recovery by the plaintiff a portion of the proceeds thereof would inure to the alleged tortfeasor under Code § 105-1304. To the judgments of the court overruling his plea and his general demurrer to the petition, the defendant assigns error.

FELTON, Chief Judge.

Since the matter raised by the plea did not appear upon the face of the petition, the plea was the proper method of raising the issue, and therefore it alone need be ruled upon. It was stipulated that Marion W. Coleman was the daughter of the plaintiff and was the daughter of the deceased, O. M. Walden. Code § 105-1302 provides that: "A widow, or, if no widow, a child or children, minor or sui juris, may recover from the homicide of the husband or parent, the full value of the life of the decedent, as shown by the evidence." "In the event of a recovery by the widow she shall hold the amount recovered subject to the law of descents, as if it were personal property descending to the widow and children from the deceased." Code § 105-1304. Since these above two sections must be considered and construed together ( City of Elberton v. Thornton, 138 Ga. 776, 76 S.E. 62, AC 1913E 994; Bloodworth v. Jones, 191 Ga. 193, 11 S.E.2d 658), the effect of a recovery by the plaintiff would be to allow the daughter, whose negligence caused decedent's death, to profit by her own wrong. Did the legislature intend such a result when it enacted this statute? The Supreme Court of Georgia has interpreted this statute to mean that a right of action is given to the children for the death of the father only in cases where the death is caused by the tortious act of one other than the children, so as to deny a right of action to a part of the children against the other. Thompson v. Watson, 186 Ga. 396, 406 ( 197 S.E. 774, 117 ALR 484). This decision was based upon the fact that the right of action was given to all the children of the deceased as a class, not as separate individuals, and upon the legislative history of the statute. "Lord Campbell, the author of the first death statute of England from which our present statute evolved, said that his act was passed for the purpose of `giving a compensation by action to the families of those killed by the negligence of others.' 12 Camp. Lives Ld. Ch. 265." Thompson v. Watson, 186 Ga. 396, 406, supra. While it is true that the plaintiff widow is bringing the suit in the case at bar, as is provided for in Code § 105-1302, and that in the Thompson case the children were bringing the action because their mother had died in the same accident as their father, there is no apparent valid reason to assume that the legislative intent (to restrict such recoveries to persons other than the named members of the decedent's family, i.e., the widow and child or children), would not apply equally in both situations. If the case of Happy Valley Farms, Inc. v. Wilson, 192 Ga. 830 ( 16 S.E.2d 720) is contrary to the Thompson, case, supra, the Thompson case, being the older case, must govern. However, the negligence involved in the Wilson case was the concurrent negligence of the husband and the defendant. In this case the negligence of the defendant is derivative under the doctrine of respondent superior and is not based on an independent act of negligence on the part of the defendant.

The fact that the tortfeasor's husband was the named defendant, under the family-car doctrine, rather than the daughter herself, would not, under the Thompson case, give the plaintiff a cause of action against the defendant, since her negligence, which would ordinarily be imputed to him under the family-car doctrine, was not actionable under the statute. See Thompson v. Watson, 186 Ga. 396, 410, supra, where it is stated: "As to the negligence of Mrs. Thompson, there being no cause of action given by the statute as arising out of the tort committed by her, no action could be maintained thereon against her husband under the family-car doctrine. While under that doctrine her negligence is imputable to him, such negligence is not actionable under the statute." It follows that the trial court erred in its judgment overruling the defendant's plea.

Judgment reversed. Bell and Hall, JJ., concur.