Opinion
34079.
DECIDED JULY 3, 1952. REHEARING DENIED JULY 16, 1952.
Action for damages; from Dougherty Superior Court — Judge Crow. March 17, 1952.
Watson Keenan, for plaintiff in error.
Farkas, Landau Davis, contra.
1. Under the Code, § 105-1309, it is necessary that the person for whose benefit an action is brought by an administrator for the homicide of the intestate be the next of kin, and also that such person be one who was dependent upon the decedent and to whose support the decedent contributed. One who was so dependent, but not the next of kin though related by blood to the decedent, may not be the beneficiary of such an action.
2. Accordingly, an aunt of a deceased niece who had been living with her, and from whom she received contributions of support and upon whom she was dependent, has no cause of action for the homicide of the niece, who, at the time of her death, had a living brother and a half brother, neither of whom was dependent upon her or received any support from her. A petition brought by an administrator of the intestate under the Code, § 105-1309, setting forth such facts, and seeking recovery on behalf of the aunt, did not set forth a cause of action, and the trial court did not err in sustaining the defendant's general demurrer and dismissing the action.
DECIDED JULY 3, 1952 — REHEARING DENIED JULY 16, 1952.
Della Jackson, administratrix, sued Central of Georgia Railway Company in Dougherty Superior Court for damages. The petition as amended alleged substantially: that plaintiff is the duly qualified temporary administratrix of the estate of Ardella Mitchell, who died on November 11, 1951, as a result of injuries wrongfully inflicted by defendant in certain described circumstances; that plaintiff was decedent's aunt and reared decedent in her home since decedent was four years old, decedent's real parents having died; that in the four years preceding decedent's death, plaintiff suffered from arthritis and was limited in her employment; that decedent quit school four years before her death and took a job to help support plaintiff; that in other particulars, plaintiff was dependent upon and receiving support from decedent; that decedent left surviving her no persons entitled to sue for her wrongful death under the provisions of either § 105-1306 or § 105-1307 of the Code of Georgia; that decedent left surviving her a brother, who, at the time of her death and at the time of filing this suit, was an enlisted man in the United States Air Force; that the said brother was not dependent upon decedent nor receiving contributions from her at the time of her death; and that decedent also left surviving her a half brother, a resident of Louisiana, who was not dependent upon or receiving contributions from her at the time of her death. The petition further alleged negligence on the part of defendant, resulting in the death of decedent, the ages and life expectancies of decedent and plaintiff, and injury to plaintiff, and concluded with a prayer for damages.
The defendant filed to the petition, a general demurrer, which was sustained and the petition dismissed; and to this judgment the plaintiff excepted.
The present action was brought under the Code, § 105-1309, which provides: "In cases where there is no person entitled to sue under the foregoing provisions of this Chapter, the administrator or executor of the decedent may sue for and recover and hold the amount recovered for the benefit of the next of kin, if dependent upon the decedent, or to whose support the decedent contributed. In any such case the amount of the recovery shall be determined by the extent of the dependency or the pecuniary loss sustained by the next of kin." (Italics ours.) In order to benefit from this statute, both dependency and contribution must exist. The existence of either dependency standing alone, or contribution standing alone, will not authorize a recovery. Wilson v. Pollard, 190 Ga. 74, 81 ( 8 S.E.2d 380). In the present case it is alleged that the aunt was dependent upon and received contributions from the niece; but the question is raised as to whether or not she has a right of action where, as alleged, the niece left surviving her a living brother of full blood and a half brother, neither of whom was dependent upon or received any contribution from the decedent.
The statute, being in derogation of the common law, must be strictly construed. Smith v. Hatcher, 102 Ga. 158 ( 29 S.E. 162); Robinson v. Georgia R. Bkg. Co., 117 Ga. 168 ( 43 S.E. 452, 60 L.R.A. 555, 97 Am. St. R. 156); Thompson v. Watson, 186 Ga. 396 ( 197 S.E. 774, 117 A.L.R. 484). It provides a right of action on behalf of the next of kin, if such next of kin was dependent upon and received support from the decedent. Strictly construing the statute, the Supreme Court held in Wilson v. Pollard, supra, that the word "or" in the language "dependent upon the decedent, or to whose support the decedent contributed" means "and," so that, as hereinbefore stated, both dependency and contribution are essential to a right of action. But the expression "next of kin" needs no construction. It means what it says, the "next of kin," as against all others not entitled to sue under the Code, §§ 105-1306 and 105-1307, and does not mean a person among a group of dependents who, in comparison with all the other members of the group, is the next of kin to the decedent, though not, as against all other persons, the next of kin or nearest of kin to the decedent. In the present case there was only one next of kin or nearest of kin to the decedent, namely, the brother of full blood. See Dawson v. Shave, 162 Ga. 126 ( 132 S.E. 912). To allow one to benefit from the last-named situation, as apparently contended by the plaintiff in error, would be to extend the provisions of the statute to a class clearly not contemplated by it, and include a person from among a group of dependents who would not necessarily be the "next of kin" as against others outside the group. In determining whether or not in the present case an administrator may bring an action on behalf of the aunt of the decedent, the first inquiry is, "Was she the next of kin?" If not, no further inquiry is necessary. If she is the next of kin, it is then necessary to inquire, "Was she dependent upon the decedent and did the decedent contribute to her support?" If that question be answered in the affirmative, she comes within the statute. If answered in the negative, she does not qualify. Here it is not necessary to go beyond the first question, because the petition alleges that the decedent left surviving her a brother and a half brother, and in this situation the aunt is manifestly not the next of kin, as under the Code, § 113-903 (5, 8), the brother of the decedent is, as against the aunt, the next of kin and stands in the second degree from the decedent sister. See also Dawson v. Shave, supra. The fact that the brother was not dependent upon her and, therefore, can not avail himself of any benefit under the statute, can not have the effect of rewriting the statute and letting in the aunt, who is obviously not the next of kin. It follows that the court did not err in sustaining the general demurrer and dismissing the action.
Judgment affirmed. Sutton, C.J., and Felton, J., concur.