Complete Auto Transit, Inc. v. Floyd, 20054

• Citation: 214 Ga. 232,104 S.E.2d 208
• Decision Date: 05 June 1958
• Docket Number: No. 20054,20054
• Parties: COMPLETE AUTO TRANSIT, INC. v. DeRoy FLOYD, Administrator.
• Court: Supreme Court of Georgia

Page 208

104 S.E.2d 208

214 Ga. 232

COMPLETE AUTO TRANSIT, INC. v. DeRoy FLOYD, Administrator.

No. 20054.

Supreme Court of Georgia.

June 5, 1958.

Syllabus by the Court

1. The plaintiff's contention that no constitutional question is raised by the pleadings in this case is without merit.

2. Ga.L.1952, pp. 224-225, amending Code, § 3-505, is not unconstitutional for any reason assigned. Count 1 of the petition, brought by an administrator to recover damages for pain and suffering of the deceased, alleged a good cause of action based upon said act, and the trial court did not err in overruling the general demurrer to that count.

3. Ga.L.1952, pp. 245-246, is unconstitutional as to the defendant in this case in that it deprives the defendant of its property without due process of law, and the trial court erred in overruling the defendant's general demurrer to court 2 of the petition which is based upon said act.

On June 17, 1957, DeRoy Floyd, as administrator of the estate of his deceased wife, Mamie M. Floyd, filed his petition against Complete Auto Transit, Inc., in which he sought recovery of damages of $50,000 for pain and suffering of his deceased wife, and medical, hospital and funeral expenses in the sum of $972. He alleged that the deceased was injured on July 27, 1955, when the tractor on which she was riding was struck from the rear by a transport unit of the defendant; that she suffered excruciating pain from the date of her injury until her death on August 7, 1955, and incurred medical, hospital and funeral expenses; and that her injury and death were the result of the defendant's negligence. On July 11, 1957, the defendant filed a plea in bar in which it was alleged that prior to her death the deceased had not filed suit for pain and suffering and therefore any action she might have had therefor did not survive to her administrator; that the husband and ten children of the deceased had previously filed suit in the Federal court for the full value of the deceased's life in which case judgment was rendered in their favor for $107,500; and that that suit was a bar to the present action for pain and suffering. On July 11, 1957, the defendant also filed an answer generally denying the allegations of the petition and, in the 'fifth defense' thereof, making the same contentions as made in the plea in bar. Likewise, on the same date, the defendant demurred generally on the ground that the petition stated no cause of action and demurred specially on the ground of a misjoinder of causes of action. In its demurrers the defendant demurred generally to paragraphs 13 and 15 of the petition, which contained allegations as to the cause of action for pain and suffering, and also to paragraph 14, which set forth the cause of action for medical, hospital and funeral expenses. On July 15, 1957, the plaintiff filed a demurrer to and motion to strike the defendant's plea in bar on the ground that it did not set out any defense either in law or in equity and on the same date demurred to and moved to strike the 'fifth defense' of the answer. On February 8, 1958, the defendant filed a defensive pleading denominated 'Elaboration of an Amendment to the Original Demurrers,' which attacked paragraphs 13 and 15 of the petition on certain constitutional grounds and prayed that said paragraphs be stricken, and which also attacked paragraph 14 on constitutional grounds and prayed that it be stricken. On February 8, the plaintiff amended his petition striking therefrom paragraph 14 (the allegations which sought recovery for medical, hospital and funeral expenses) and adding count 2 in which he sought recovery for these items. Thereafter, on the same date, the defendant filed a renewal of its demurrers. At a hearing on February 8, 1958, the trial court sustained the plaintiff's demurrers and motions to strike the plea in bar and the 'fifth defense' of the answer and overruled all the defendant's demurrers to the amended petition. To these rulings adverse to it the defendant excepts.

Cubbedge Snow, Martin, Snow, Grant & Napier, Macon, T. Malone Sharpe, T. Ross Sharpe, Lyons, for plaintiff in error.

J. H. Highsmith, Baxley, Gordon Knox, Jr., Hazlehurst, for defendant in error.

MOBLEY, Justice.

1. The plaintiff contends that under the pleadings in this case no constitutional question as to the validity of the statutes involved was properly raised. Since this court's jurisdiction of the case, which is a suit for damages, depends entirely upon whether a constitutional question is presented for decision, we will first pass upon this question. It is contended that the 'elaboration and amendment' of demurrers, filed more than five months after the appearance day, was filed too late. While it is true that special demurrers must be filed on or before the appearance day (Ford v. Fargason, 120 Ga. 708(1), 48 S.E. 180; Roberts v. Burnett, 164 Ga. 64(7), 137 S.E. 773; Richmond & Danville R. Co. v. Mitchell, 95 Ga. 78, 22 S.E. 124), 'A defendant may at any time before verdict, either orally or in writing, move to dismiss the case on the ground that the petition sets forth no cause of action, and in such a motion urge any ground which would be sufficient as a basis of a motion in arrest of judgment. Kelly v. Strouse, 116 Ga. , 883(5), 43 S.E. 280. A paper filed after the first term, which is styled a demurrer, but which is really in the nature of a motion to dismiss for want of a cause of action, should be treated by the court as of the latter character. Macon & B. Ry. Co. v. Walton, 121 Ga. 275, 276(2), 48 S.E. 940.' Henderson v. State of Georgia, 123 Ga. 465, 466, 51 S.E. 385, 386. In Douglas, Augusta & Ry. Co. v. Swindle, 2 Ga.App. 550, 555, 59 S.E. 600, 602, it was stated: 'That a demurrer is addressed to a special paragraph of a petition instead of to the petition as a whole, does not of itself change it from a general to a special demurrer. The same characteristics which obtain as to the term 'general demurrer,' when applied to the petition as a whole, still pervade it when addressed to a particular paragraph. And the legal result is the same.' The defendant's 'elaboration and amendment' of demurrers in this case was not a special demurrer, pointing out merely some defect of form in the petition, but was addressed to three entire paragraphs of the petition, going to the very vitals of the case and praying that these paragraphs be stricken from the petition. Without these paragraphs no cause of action would have been alleged against the defendant. While the paper filed was denominated a demurrer, it contained general grounds of objection going to the entire cause of action, and prayed that parts of the petition be stricken, without which the petition would not have stated a cause of action, and under the ruling in Macon & Birmingham & Ry. Co. v. Walton, 121 Ga. 275, 48 S.E. 940, might properly have been considered by the trial court to be in the nature of a motion to dismiss for want of a cause of action. Furthermore, the plaintiff made no objection in the trial court to the defendant's demurrers on the ground that they were filed too late. In Mayo v. Owen, 207 Ga. 641, 63 S.E.2d 649, it was held that notwithstanding the provisions of Code (Ann.) § 81-301 relating to the time of filing defensive pleadings, the parties having procured a ruling on a demurrer filed after the required time thereby waived the time of filing. In our opinion, the pleadings in this case properly raised the question as to the constitutionality of the statutes involved, and the plaintiff's contention in this connection is without merit.

2. By a plea in bar and in the 'fifth defense' of its answer, the defendant sought to bar the present action by the administrator on the ground of a former recovery by the husband and children of the deceased. It is alleged that the deceased's husband and children filed suit in the Federal courts for the full value of the deceased's life, that judgment was rendered in their favor in the sum of $107,500, and that the present suit is barred by the recovery in that suit. Code, § 3-607 provides in part as follows: 'A former recovery, or the pendency of a former suit for the same cause of action, between the same parties, in the same or any other court that has jurisdiction, shall be a good cause of abatement.' But in Georgia Railroad & Banking Co. v. Tice, 124 Ga. 459, 461, 52 S.E. 916, 917, it was held: 'When a married woman is injured by the wrongful conduct of another, two different causes of action may arise--the one in her favor for her own pain and suffering, and the other in favor of the husband for the loss of his wife's services and for expenses incurred as a consequence of the injuries to her. These causes of action are separate and distinct, and in favor of different parties.' In the event of the wrongful death of a wife or mother, Code (Ann.) § 105-1306 provides that the husband and/or child or children surviving shall be entitled to maintain a cause of action jointly for the full value of the life of the decedent. The cause of action for wrongful death is a separate and distinct cause of action from that of the wife for her pain and suffering. Stephens v. Columbus Railroad Co., 134 Ga. 818, 68 S.E. 551; Spradlin v. Georgia Ry. & Elec. Co., 139 Ga. 575, 77 S.E. 799; Dayhuff v. Brown & Allen, 150 Ga. 291, 103 S.E. 458. Furthermore, the suit by the administrator. DeRoy Floyd, seeking to recover for pain and suffering of the deceased is not between the same parties as the suit brought by the husband and minor children for the full value of the life of the deceased. Accordingly, there was no merit in the contention that the recovery in behalf of the father and minor children against the defendant for the full value of the life of the deceased constituted a bar to the present action by the administrator of the wife's estate to recover for her pain and suffering.

The next question raised by the plea in bar, 'fifth...