Clark v. Southern Ry. Co.

• Decision Date: 15 June 1917
• Docket Number: 8240.
• Citation: 92 S.E. 1020,20 Ga.App. 274
• Parties: CLARK v. SOUTHERN RY. CO.
• Court: Georgia Court of Appeals

92 S.E. 1020

20 Ga.App. 274

CLARK v. SOUTHERN RY. CO.

No. 8240.

Court of Appeals of Georgia, Second Division

June 15, 1917

Syllabus by the Court.

The court did not err in sustaining the demurrers and dismissing the suit.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Suit by Mrs. Maggie Clark against the Southern Railway Company. Demurrers to petition sustained, and suit dismissed, and plaintiff brings error. Affirmed.

McCallum & Sims, of Atlanta, for plaintiff in error.

McDaniel & Black, of Atlanta, for defendant in error.

BLOODWORTH J.

Mrs Maggie Clark brought suit against the Southern Railway Company for $2,000 damages, alleging that she was the mother and sole surviving parent of Henry Grady Clark, a minor. The allegations in the petition are very general, and no direct and specific act of negligence is charged, but the petitioner seeks to plead that the question of negligence as to this case is settled by reason of a former action instituted by the said Henry Grady Clark by and through the petitioner as his next friend, in which there was a recovery by the plaintiff. To the petition in this case the defendant filed special and general demurrers, the special demurrers were sustained and a number of paragraphs of the petition stricken, and the petition was dismissed on the general demurrer.

The court did not err in sustaining the demurrers and dismissing the suit. The allegations in the several paragraphs of the petition were general and uncertain, and lacking in that definiteness necessary to good pleading. There is no direct and specific allegation of negligence, but an effort is made to plead in this case the verdict and judgment in the suit of Mrs. Maggie Clark, as next friend of Henry Grady Clark against the Southern Railway Company, as an estoppel on the question of negligence. Even if it were permissible thus to plead, the petition must be definite and certain, complete within itself, and leaving nothing to conjecture. In the petition in this case there are some general references to the former case, but no part of the petition in that case is attached to the present petition. A copy of the verdict and judgment only is attached. However, we think the principle involved in this case is settled by the case of Hooper v Southern Ry. Co., 112 Ga. 96, 37 S.E. 165. The first headnote of that decision is as follows:

"A suit against a railway company for personal injuries to a minor, brought in his behalf by his father as next friend, is not, either as to cause of action or as to parties, actually or substantially the same as a suit by the father in his own right against such company for loss of the minor's services, occasioned by those injuries."

Counsel for the plaintiff in error insist that:

"The petition in this case is drawn with the express purpose of aligning it with the case of Anderson v Railroad Co., 9 Daly (N. Y.) 487, and every allegation which, in the Hooper Case, the court said distinguished that case from the New York case just cited, has been carefully eliminated from the instant case. And counsel for plaintiff in error respectfully submit that the case before the court now is on all fours with the New York case reported in 9 Daly."

The New York case, supra, which was discussed in the Hooper Case, supra, was decided by three judges, no authority was cited to sustain it, its soundness has been questioned by text writers, and in the case of Malsky v. Schumacher, 7 Misc. 8, 27 N.Y.S. 331, decided by a full bench, it was practically overruled. In the latter case we find the following:

"The complaint in this action sets out the recovery of judgment in an action by plaintiff's father for loss of service by reason of the accident here complained of, which was not denied by the answer. Upon the trial he offered the judgment roll in the father's action 'as an estoppel by record.' The court excluded it, and the plaintiff excepted. He then offered the roll 'as some evidence of the fact that the injury was caused solely by reason of the negligence of the defendant.' The court again excluded it, and plaintiff excepted. We think both rulings were correct. The judgment in favor of the father could not be

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