City of Athens v. Smith

• Decision Date: 08 August 1900
• Citation: 36 S.E. 955,111 Ga. 870
• Parties: MAYOR, ETC., OF CITY OF ATHENS v. SMITH.
• Court: Georgia Supreme Court

36 S.E. 955

111 Ga. 870

MAYOR, ETC., OF CITY OF ATHENS v. SMITH.

Supreme Court of Georgia

August 8, 1900

Syllabus by the Court.

1. A married woman living with her husband may bring an action in her own name for physical injuries sustained by her. Civ. Code, § 2475; City of Atlanta v. Dorsey, 73 Ga. 479; Pavlovski v. Thornton, 15 S.E. 822, 89 Ga. 829.

2. A general motion to dismiss a suit "because it is a suit for a tort by a married woman living with her husband, in her own name alone," was properly overruled where the petition set out a cause of action against the defendant, and prayed for certain elements of damage for which the plaintiff could recover, although it may have also contained prayers for other elements of damage for which the plaintiff had no right to sue. A general demurrer should not prevail where any part of the petition is good. Reese v. Reese, 15 S.E. 846, 89 Ga. 645, 652, and cases cited; Munnerlyn v. Bank, 14 S.E. 554, 88 Ga. 308, 312, 15 L.R.A. 637, and cases cited. See, also, Baer v. Christian, 9 S.E. 790, 83 Ga. 322.

3. The evidence warranted the verdict for those elements of damage alleged in the petition for which the plaintiff was entitled to recover, and the trial judge did not abuse his discretion in overruling a motion for a new trial based on the grounds that the verdict was contrary to law and evidence.

Error from superior court, Clarke county; R. B. Russell, Judge.

Action by M. S. Smith against the mayor and common council of the city of Athens. Judgment for plaintiff, and defendant brings error. Affirmed.

F. C. Shackelford and Strickland & Green, for plaintiff in error.

E. S. Price, W. M. Smith, and Lumpkin & Burnett, for defendant in error.

PER CURIAM.

Judgment affirmed.