The City of Atlanta v. Wilson.

The whole matter is for the jury, under proper instructions from the bench.

Cited for plaintiff in error: What demurrer admits, 4 Ga. 520; 49 id. 419; Code, § 3332; Stephens' Pl. 143. Negligence as cause of injury, Dill. on Mun. Corp., § 788; Mitchell v. Black, 7 Gray, 100, 104; Howard v. Bridgewater, 16 Pick. 189; Shepherd v. Chelsea, 4 Allen, 113; Titus v. Northbridge, 97 Mass. 258, 266; Fogg v. Nahant, 98 id. 578; Underwood v. Brown, 106 id. 298; Moore v. Abbott, 32 Me. 46; Farrar v. Greene, id. 574; Moulton v. Sanford, 51 id. 127; Jackson v. Bellevieu, 30 Wis. 250; Coy v. U. & S. R. R. Co., 23 Barb. 643; Daniels v. Atkins, 55 Ga. 609 Neg., § 103, et seq.

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For defendant: Palmer v. Andover, 2 Cush. 600; Winship v. Enfield, 42 N. H. 197; Manderschid v. Dubuque, 25 Iowa, 108; Lacon v. Page, 48 Ill. 499; Joliet v. Verley, 35 id. 63; Am. Law Times, June, 1876, p. 92; Code, §§ 2972, 3072; Flanders v. Meath, 27 Ga. 358.

NOTE BY THE REPORTER.

Judgment affirmed.

On the vexed question of the liability of municipal corporation for an injury produced by a defect in a street to a runaway horse, the recent discussion of the New York Court of Appeals in the case of Ring v. The City of Cohoes decided April 15, 1879, is in harmony with the principal case. The following abstract of it is from 19 Alb. L. Jour. 359:

The plaintiff was driving a blind horse harnessed to a sleigh on the street of a city; the street was thirty feet wide between curbs; on the west side there was a heap of ashes twenty feet wide, three feet high, and extending eleven feet into the street, leaving a roadway of ninteen feet; a loaded wagon was coming southerly next the ashes, leaving about twelve feet clear; the plaintiff's horse, going north, became frightened, and began to run; the plaintiff was unable to restrain or guide him, and he ran so near a hydrant on the east side, opposite the wagon, as to strike the nozzle with the cross-bar of the sleigh, and plaintiff was thrown against the hydrant and injured; the referee found that the plaintiff was free from fault, and that the city was in fault for suffering the ashes in the street, and for suffering the hydrant nozzle to project into the street. Held, that as to the hydrant the finding was erroneous, the nozzle projecting only four inches over the gutter; and it not appearing, or being found that the ashes caused the accident, no liability can be based on the negligence of the city in respect to that. The city is not bound to furnish roads safe for horses to run away upon, but to furnish reasonably safe roads, and if it does not, and a traveller is injured in consequence of a culpable defect in the road, it is no defense that his horse was running away at the time. In Massachusetts, Maine and Wisconsin, municipal corporations are not bound to make their roads so that travellers shall be safe when their horses are unmanageable, frightened or running away. Moulton v. Inhab, of Sanford, 51 Me. 127; Nichols v. Inhab. of Athens, 66 id. 402; Perkins v. Inhab. of Fayette, 68 id. 152; Davis v. Inhab. of Dulley, 4 Allen, 558; Titus v. Inhab. of Northbridge, 97 Mass. 258; Fogg v. Inhab. of Nahant, 98 id. 578; Murdock v. Inhab. of Warwick, 4 Gray, 178; Dreher v Inhab. of Fitchburg, 22 Wis 675; Houfe v. Inhab. of Fulton, 29 id. 296; 9 Am. Rep 568. But la Vermont, New Hampshire, Connecticut, Missouri, Pennsylvania, and Upper Canada, a different rule prevails. Baldwin v. Turnpike Co., 40 Conn 238; Hull v• City of Kansas, 54 Mo. 601; 14 Am. Rep. 487; Hunt v. Town of Pownal, 9 Vt. 411; Winship ▼. Enfield, 42 N. H. 197; Hey v. City of Philadelphia, 81 Penn. St. 44:22 Am. Rep. 733;

Bently v. Terry.

Sherwood v. City of Hamilton, 37 U. C. Q. B. 410. When two causes combine to produce an injury to a traveller upon a highway, both of which are in their nature proximate, the one being a culpable defect in the highway, and the other some occurrence for which neither party is responsible, the municipality is liable provided the injury would not have been sustained but for such defect.

To the same effect is Wilson v. City of Atlanta, 60 Ga. 473. There the court say:

in a

"It seems that the court was also of opinion that where there was a runaway of plaintiff's team there could be no recovery, no matter what was the negligence of defendant in respect to the streets — or in other words, as the assignment of error has it, that case where a swingle-tree becomes detached, and horses are frightened and run away, and run over an embankment, as in this case, a plaintiff cannot recover damages.' In our judgment, this ruling is too strong. There might be a case where the swingle-tree did become detached, and the horses did run away, and where the city would be liable. Concede that this embankment was not so wide as it is, and much higher from the level of the natural ground, and an accident happened and horses ran away, and the faulty plan or structure of the grading was the real cause of the damage, there could be a recovery, notwithstanding the running away of the horses. One object of good streets and roads is to protect against accidents. The street should be reasonably safe for ordinary travel, including such accidents as might, without fault on the part of the traveller, befall him."

The father of an infant may, by voluntary contract, release his parental power over his child to another.

The agreement to care for the child, and the fact that the child is taken when sick, and nursed into health and strength, and supported properly and com. fortably for five years, are sufficient considerations to support such a contract; and the contract, though made with the wife by the child's father, will be enforced if acquiesced in by the husband, and is not revocable, ex. cept for sufficient legal reasons, such as bad treatment of the child and the like.

ABEAS CORPUS. The facts are stated in the opinion.

HA

J. G. & W. C. McCall, for plaintiffs in error.

W. G. Turner, for defendants.

JACKSON, J. Mrs. Bently and Mrs. Terry are sisters. The latter has no children. When Mrs. Bently was sick and had lost a child, perhaps two, Mrs. Terry took the little daughter of her sister

Bently v. Terry.

home with her, and nursed the child, who was sick, into vigor and renewed life. She kept the child some five years; sick for some time after she took her; delicate up to a year or two ago; has supported her comfortably and kindly all the time, without help from the little girl's parents. The child is now some eight years old, and was taken by Mrs. Terry when but two or three years old, and almost lifeless. The parents of the child now want the daughter back, and sued out a writ of habeas corpus for her; the judge decided in favor of the retention of the little girl by her aunt, Mrs. Terry. Mr. and Mrs. Bently, the parents, excepted to that judgment, and the case is before us for review.

In regard to the terms on which the child was taken by Mrs. Terry, the evidence is conflicting. The Terrys prove that the child was given to Mrs. Terry by Mr. Bently, by their own evidence and that of others. The Bentlys swear the contrary, and produce witnesses to show the contrary. The probabilities are that they may have misunderstood each other. However that may be, the judge below has passed upon the evidence, and he had a right to do so in case of conflict.

1. If the contract was made by Mr. Bently with Mrs. Terry, as she asserts, and tries to prove, there can be no doubt that he had power to dispose of the child. Section 1793 of the Code settles the point. It declares that "parental power is lost. 1. By voluntary contract releasing the right to a third person." This is precisely what Mr. Bently did in this case, with his daughter, according to Mrs. Terry's version of the agreement.

2. But it is said that there was no consideration for the contract, and that Mrs. Terry, being a married woman, could not make it. We think that the agreement to take the child home and nurse and care for the little girl as her own is a sufficient consideration to support such a contract, especially as it has been executed for five years on the part of Mrs. Terry. Nor do we think that she could not make such a contract under the circumstances of this case. Her husband acquiesces in it. He joins her in defense of this suit. He received the child at his house, and supports his wife throughout the transaction. The contract is binding both upon his wife and himself. Besides, this is a sort of matter that the wife will always manage, and the husband must object in time, if he does not wish to be bound by her acts. In the case of Janes v. Cleghorn, 54 Ga. 10, the contract there enforced was with a mar

ried woman.

Rountree v. Dennard.

But it is clear that, in this case, the husband has ratified all that his wife did.

3. The contract when made and executed in part, as in this case, is clearly irrevocable by the parent, unless for good cause. This change of mind is not such good legal cause. It would be wrong to hold that, after the child has been nursed, and loved, and cherished under the contract for five years, it could be revoked at pleasure by the parent. If the child were badly treated, it might be annulled; if any other good reason arose, it could be set aside as any other eontract which was violated; but for no cause at all, it cannot be. And so it was held in 54 Ga. 10, before cited.

The law provided that "each head of a family or guardian of a family of minor children" should be entitled to a homestead. Held, that the guardian of one minor child was entitled to a homestead.

UESTION of homestead exemption. The facts are stated in the opinion.

B. M. Davis, Duncan & Miller, for plaintiff in error.

Warren & Grice, for defendants.

JACKSON, J. Rountree was the guardian of one minor child, who was the only child left by his father, and the question on appeal from the ordinary was whether such one child was entitled to a homestead and exemption as a family of minor children would have been entitled to under the Constitution and laws, and whether the guardian could have the same set apart for the benefit of one child just as for a family of more than one, if more had survived the father.

The court charged the jury that one child could not constitute a VOL. XXVII-51

Rountree v. Dennard.

family of minor children in the sense of those words in the Constitution; the jury found against the application of the guardian, and the guardian excepted; and the question is, was the charge right?

We think that the charge was wrong. The Constitution declares that "each head of a family, or guardian or trustee of a family of minor children, shall be entitled to a homestead of realty to the value of two thousand dollars, in specie, and personal property to the value of one thousand dollars, in specie, both to be valued at the time they are set apart." Code, § 5135.

It is clear that the head of a family, though the family be but one child, would be entitled to the homestead. The family would be the head and the child.

In case there should be no father or mother, then the guardian becomes the head of the family, and the minor and himself would constitute the family - the property being for the use of the child. A minor particularly a very young one-would live with the guardian, and be part of his family, and the property would be for a family, in contemplation of law, consisting of this guardian and child. It is true that it is ruled in 46 Ga. 231 that a widow, without any child, is not the head of a family; and that is right, for she is not; but suppose that she had one child, then she would have been, and she and the child would have been the family-she the head and the child the other part of it; or it may be, as she alone could not get the homestead, that the child alone would constitute the family of which she was the head. Can the child be deprived of the homestead because it has no father or mother?

Was this the spirit and sense of the Constitution? We think not; but that it was intended to give to orphans, whether one or more, the same rights as to other children whose parents was alive, and the fact that a man has a family is true, whether that family be one child or many; and the fact that a widow has a family is also true, whether her husband left her with one child or more. For these reasons, looking at the reason and spirit of the Constitution, and the law which copies it Code, § 2002-and not sticking in its bare letter, we have no doubt that the court below erred in his construction, and we reverse the judgment. Judgment reversed.