Opinion
38203.
DECIDED APRIL 11, 1960.
Action for damages. Meriwether Superior Court. Before Judge Boykin. December 18, 1959.
Hatcher, Smith, Stubbs Rothschild, A. Edward Smith, Wyatt Morgan, for plaintiff in error.
Stonewall H. Dyer, Henry N. Payton, contra.
Where, as here, complete custody and care of a minor child has been released by the father to the mother by contract the mother is entitled to recover amounts expended by her for expenses incidental to the medical care of the child arising out of a negligent injury.
DECIDED APRIL 11, 1960.
Mrs. Azalea V. Neeley brought a suit against Southern Railway Company, alleging damages for loss of services, for hospital and medical expenses, as well as damages to her car. The prayer is for a total of $6,977.97. Paragraph 3 of the petition shows that the plaintiff is the mother of one John J. Neeley, Jr., who was a minor 17 years of age at the time of the damages; that a court awarded permanent custody of the said minor to the plaintiff after a divorce from the father of the minor. Paragraph 4 alleges that the defendant owns a railroad in Meriwether County over which it operates its trains. Paragraph 5 alleges that one V. E. Brantley was operating the train at the time of the collision. Paragraph 6 alleges that on May 27, 1957, at approximately 8:15 a. m., the train collided with a car driven by the plaintiff's minor son. Paragraph 7 alleges that an unpaved public road crosses the tracks of the defendant, which road is known as Cold Springs Road. Paragraph 9 alleges that Cold Springs Road crosses the railroad tracks. Paragraph 10 alleges that where the said road crosses the railroad tracks there is an embankment covered with dense undergrowth which conceals the approach of a train from the north and also serves to muffle the sound of an approaching train. Paragraph 11 alleges that the plaintiff's minor son could not see down the railroad tracks until his car had reached approximately four or five feet from the tracks, at which place he looked down the tracks to his left and could not see a train approaching, then attempted to cross the tracks and was run into and hit by the southbound freight train, thereby sustaining injuries which are described in detail in the petition. Paragraph 12 alleges that the plaintiff's son was not warned in any manner by bell, whistle or otherwise. Paragraph 13 alleges that the train was being operated at a rapid rate of speed from 40 to 50 miles per hour and even though the engineer applied his brakes at or about the crossing, the train ran approximately 100 yards before it could be stopped. Paragraph 14 alleges that when the train struck the car it knocked the car approximately 40 feet in a southerly direction along the railroad tracks. Paragraph 15 alleges that the car was almost completely demolished, rendered useless and that it had to be junked. Paragraph 16 alleges that the defendant failed to check the speed of his train upon approaching the crossing, failed to give a warning signal, such as ringing a bell or blowing a whistle, but that the brakes were suddenly applied at approximately the time of the crash. Paragraph 17 sets out the city ordinance of the City of Warm Springs, Georgia, on which the plaintiff relies, which ordinance provides that a train shall not be operated where the railroad intersects with an unpaved or soft surfaced street or road, as here, at a speed of more than 30 miles per hour. Paragraph 18 alleges that the engineer was an employee, agent or servant of the defendant. Paragraph 19 alleges that the engineer was, at the time and place specified, performing duties within the scope of his employment with the defendant. Paragraph 20 sets out in detail the injuries to the minor son of the plaintiff, as do paragraphs 21 and 22. Paragraph 23 alleges that as a result of the injuries sustained by her son, the plaintiff has had to expend much money for hospital and doctor bills. Paragraph 24 alleges that the injury to the right leg of the plaintiff's son is permanent. Paragraph 25 alleges that before the injury the son was in good health and that his services were of a reasonable value of $30 per week to the plaintiff. Paragraph 26 alleges the value of the car before and after the collision. Paragraphs 27, 28 and 29 set out monetary values of the results of the collision. Paragraph 30 alleges negligence on the part of the agent of the defendant.
The defendant answered denying negligence and alleged in the answer that the plaintiff's son did not stop the car before reaching the tracks but drove onto the tracks and then stopped the car which stalled; that the engineer was ringing the bell and blowing the whistle as he approached the crossing and that the headlights were burning; that the plaintiff's son was thoroughly familiar with the crossing and that he ignored all signals, and that for these reasons the negligence on the part of the son was the sole and proximate cause of his own injuries.
The plaintiff filed a motion for a new trial on the statutory grounds and added two special grounds. The case went to trial and resulted in a jury verdict in the sum of $6,500 in favor of the plaintiff and against the defendant. It is on the judgment denying the motion for a new trial that the case is here for review.
The evidence shows substantially as follows: Joseph G. Cruse, Chief Deputy Sheriff of Meriwether County, sworn for the plaintiff, testified that at the time of the collision Highway 85, a main highway from Warm Springs to Columbus was under construction and that it was necessary to detour on the road where the collision occurred; that the place where the collision occurred is within the city limits of Warm Springs; that "I didn't hear a bell on the train, but it definitely did not blow. If it had been ringing a bell I could have heard it. He [meaning the engineer] definitely did not blow the whistle as he approached said crossing;" that a driver would have to get right up to the crossing before a train could be discerned coming from the north; that there is a sharp rise in the road as it approaches the railroad tracks and a sharp drop on the other side of the tracks.
Roy Neeley, an uncle of the plaintiff's son, testified that immediately following the collision he went to the scene of the accident and made some photographs, which are in the record as exhibits. The photographs show where the dirt road crosses the railroad tracks and show that there was much shrubbery around and about the approach. This witness testified that a car could not go across the railroad tracks at more than four or five miles an hour without "scraping" the bottom of the car.
The driver of the automobile testified that when the collision occurred he was driving his mother's car and was on his way to high school; that as he approached the crossing he slowed down and looked in both directions; that when he was very close to the crossing he could see to the right but not until he was very close; that when he looked he started on across the tracks and saw the train coming close; that he then attempted to put his car in reverse to back off the tracks; that no bell was ringing nor was any signal whatsoever given as the train approached. The witness then described his injuries and the resulting hospitalization and loss of time from school. He testified that he was not moving over two miles per hour when the collision occurred; that it was not possible to see up and down the tracks two or three rail lengths, with a car as much as four feet from the nearest rail; that he heard no signal; that he did not see headlights although he was sure that had they been burning he would have seen them; that the first time he saw the train was when it was 30 or 40 feet away; that the train was moving about 30, 35 or 40 miles per hour when it struck the car; that there was a distress whistle blast from the train just about the time the train hit the car.
The plaintiff's daughter, who was riding in the car, testified substantially as did her brother. She said positively that there was no bell ringing and no whistle blowing on the locomotive at the time of the collision, although there was a blast at approximately the time of the collision.
Jeff Hill, a rural mail carrier, testified that it was a bad crossing and that he himself "got my car hung up on the crossing."
The plaintiff testified that her son was driving her car at the time of the collision and she testified extensively as to the resulting injuries to her son, as well as the resulting expenses incident thereto.
A fireman on the defendant's train, sworn for the defendant, testified that the weather was fair on the day of the collision; that the train was being operated at about 25, 26 or 27 miles per hour; that "we had blown the road crossing" and that "we put the bell to ringing in Warm Springs and it had never been cut off." The fireman testified further that he did not see the car until he was right on it; that the car was moving and then stopped; that the front wheels of the car were on the tracks; that the train was stopped and the crew got out to check the results of the collision; that the headlights were burning on the locomotive at the time of the collision.
1. It is elementary that medical services furnished to a minor child are classified as necessaries. McCarter v. McCarter, 10 Ga. App. 754 ( 74 S.E. 308), and Buhler v. Cohn, 31 Ga. App. 463 ( 120 S.E. 785). This court also recognizes the fact that it is the duty of a father to provide for the maintenance, protection, and education of his child. See Code § 74-105. There are many citations to this effect. In Krasner v. O'Dell, 89 Ga. App. 718 ( 80 S.E.2d 852), this court held that medical expenses incurred for treatment of a minor child's injuries, as well as the loss of a child's services, are elements of damage which give rise to a cause of action by the father.
In the case at bar, although no divorce decree is in the record, it appears that the mother has had custody of the children since 1952. There is some indication in the record that there was a divorce, but be that as it may, there was an agreement signed by both the mother and the father that the mother was to have complete custody and care of the minor children. We recognize that even after a divorce decree which makes no provision for support of the minor children but custody is awarded to the mother, the father remains liable for the support of his minor children. See Murphey v. Murphey, 215 Ga. 19 ( 108 S.E.2d 872). The facts in the instant case remove this case from the scope of the holdings by this court and by the Supreme Court that even after the divorce decree with no provisions for the support of the minor children, the father remains liable for the support for the reason that the contract, which is in the record now before us, provides that the father pay the mother so much per month for the support of the children. In Garrett v. Garrett, 172 Ga. 812 ( 159 S.E. 255), the Supreme Court held that a mother may recover for expenditures incurred on behalf of a minor child if the father fails or refuses to discharge this obligation. The Supreme Court held in Smith v. Smith, 136 Ga. 531, 533 ( 71 S.E. 869) that a divorced wife stands in the same position as a stranger as to the support of her children, and even as a stranger she can maintain an action against her former husband for necessary expenses incurred in maintaining and nourishing their minor children. See also Brown v. Brown, 132 Ga. 712 ( 64 S.E. 1092, 131 Am. St. Rep. 229). It seems to us that if the wife could recover from a former husband in such instance, she could also recover from a railroad company for expenses incident to taking care of a minor child for injuries incurred by reason of the negligence of the railroad company, as here. Code § 74-108 (1) provides that where, as here, a parent releases the right to another person by a voluntary contract, such parent loses power of control and services and proceeds of the labor of the child. In Coleman v. Dublin Coca-Cola Bottling Co., 47 Ga. App. 369, 370 ( 170 S.E. 549), this court held that "`In no case can a father maintain an action for a wrong done to his minor child, unless the father has incurred some direct pecuniary injury therefrom, in consequence of loss of service necessarily consequent thereon,' or necessary expenses incurred thereby. Sorrels v. Matthews, 129 Ga. 319, 321 ( 58 S.E. 819, 13 L.R.A. (NS) 357, 12 Ann. Cas. 404)."
Let us remember that in the instant case the father of the minor child testified that "in 1952, Mrs. Neeley and I were separated. We entered into a contract with reference to support and custody of the children. [The contract is in the record as an exhibit.] Since that time she has had exclusive control and custody of the children. At that time I relinquished all my rights, control and custody of the minor children to her. Since that time I have been paying everything that the contract calls for. I have not claimed custody and control of the children since entering into this contract." This court takes the position that under this contract the father was not liable for more than the contract called for and the contract did not call for enough money to pay for the medical expenses incurred by the mother when the minor child was injured and for this reason she is entitled to be reimbursed by the defendant for the expenses incident to the injury because of the negligence of the defendant. It has been held by the Supreme Court that where a father relinquishes his parental right by contract, a clear and strong case must be made, and as regards his control, a contract must be clear, definite, and unambiguous. See Waldrup v. Crane, 203 Ga. 388 ( 46 S.E.2d 919). In that case the Supreme Court did hold that the contract there was not sufficient to meet the test, but we hold that in the instant case the contract is sufficient to meet the test. See also Miller v. Wallace, 76 Ga. 479 (2 Am. St. Rep. 48).
Under the facts of this case the jury did not err in awarding the plaintiff $6,500, which included some expenses for the medical care of the minor child.
Special ground 1 alleges that the court erred in charging the jury in regard to the expenditure of certain amounts for medical, doctor and hospital services. In view of the evidence depicted by this record we do not feel that the court erred in so charging the jury. Special ground 1 is not meritorious.
Special ground 2 alleges that the verdict was excessive. This is based on the contention that the plaintiff was not entitled to recover medical expenses. We have covered this point hereinabove and do not feel that it is necessary to go extensively into this matter again. Special ground 2 is not meritorious.
The court did not err in any of the rulings.
Judgment affirmed. Townsend and Carlisle, JJ., concur.