Davis v. Atlanta Gas Light Co.

• Decision Date: 30 September 1950
• Docket Number: No. 33134,2,Nos. 1,33134,s. 1
• Citation: 82 Ga.App. 460,61 S.E.2d 510
• Parties: DAVIS v. ATLANTA GAS LIGHT CO
• Court: Georgia Court of Appeals

Page 510

61 S.E.2d 510

82 Ga.App. 460

DAVIS v. ATLANTA GAS LIGHT CO.

No. 33134.

Court of Appeals of Georgia, Division Nos. 1, 2.

Sept. 30, 1950.

Rehearing Denied Oct. 19, 1950.

Syllabus by the Court.

(a) Prior to the enactment of the statute of 4 Edward III, c. 7, no cause of action in tort survived to the personal representative of the deceased. This statute, which was enacted in the 14th century, became a part of our common law on May 14, 1776, Harris v. Powers, 129 Ga. 74, 58 S.E. 1038; Tucker v. Adams, 14 Ga. 548, and by virtue thereof causes of action for damage to personal property survive to the personal representative of the deceased injured party although no action is pending at the time of death. Leathers v. Raburn, 17 Ga.App. 437, 87 S.E. 754, is overruled insofar as it conflicts with what is herein held. There is no provision of our law for the survival of causes of action for damages to real property where at death no suit has been filed and there is no assignment in writing of the right of action. The statute of William IV providing for the survival of such causes of action under English law, not having been adopted until 1833, did not become a part of our common law.

(b) Pending repair, the rental of realty that has been damaged by the tortious act of another, being an item of special damage to the realty, cannot be recovered where the damage to the realty itself is not recoverable.

(c) Medical expenses, being an item of special damage incident to the injury to the person, cannot be recovered where damages for injury to the person are not recoverable.

(d) Funeral expenses are not recoverable by the administrator of a deceased person against one who brought about such decedent's wrongful death, there being no provision of law for such recovery.

(e) It follows that since the petition sets out a cause of action for damages to personal property, a part of the cause of action is good in law. The trial court therefore erred in sustaining the general demurrer and dismissing the petition.

Kathryn Ann Davis as administratrix of the estate of Mrs. Katherine Russell Davis, filed suit in the Superior Court of Lowndes County against the Atlanta Gas Light Company seeking to recover damages to real and personal property of the decedent's estate and medical and burial expenses. The petition alleged in brief that because of certain alleged acts of negligence on the part of the defendant, which had previously installed a hot water heater in the basement of the decedent's home, the basement of her home became flooded with gas; that the deceased, on June 15, 1949, attempted to light her heater; that a violent explosion occurred; that as a result thereof the owner was fatally injured and died the following day; that the house was damaged in the amount of $6,841.76, personalty in the amount of $250 destroyed, rents lost in the amount of $300, and medical and burial expenses of $673 incurred by the plaintiff administratrix, all of which are items of damage for which she sues. The defendant demurred generally to the petition on the ground that it set out no cause of action because the named items of damage 'cannot be recovered by the plaintiff in view of the fact that the cause of action, if any, was in Mrs. Katherine Russell Davis, who lived to a time beyond the time of the explosion complained of in this suit, and who did not being any cause of action before her death; and this cause of action and all the damages alleged therein are such that her personal representative cannot after her death bring a suit to recover. Each item of damage was also separately attacked by special demurrer. The trial court sustained the general demurrer and dismissed the petition, and this judgment is assigned as error.

Odum & Young, and Franklin, Eberhardt & Barham, all of Valdosta, for plaintiff in error.

Moise, Post & Gardner, Atlanta, Copeland & Dukes, Valdosta, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts.)

Causes of action based on wrongful death survive in this state by virtue of statutory enactment, Code ch. 105-13 and allow recovery of the full value of the life of the decedent on behalf of the parties specified in the statute. Likewise, any pending action for the recovery of damages for homicide, injury to person or injury to property, does not abate. Code, § 3-505. There is, however, no statute of this state applicable to causes of action, as distinguished from pending actions, for damage to property. The right to recovery for injury to property rests primarily in the owner thereof, and may be assigned during the owner's lifetime, Code, § 85-1805, because of the fact that it is an injury to property and not an injury to the person. In this case the right of action was not assigned, and the owner of the property died on the day following the injury. Therefore, unless there is some provision of law under which the cause of action may survive, it must abate upon the death of the owner.

It has frequently been held that if a chose in action is assignable it will survive, and vice versa. See 1 Am.Jur. § 80; 1 C.J.S. Abatement and Revival, § 132, p. 178; City of Milwaukee v. Boynton Cab Co., 201 Wis. 581, 229 N.W. 28, 231 N.W. 597. It is obvious that such a rule is not absolute. In this state causes of action for personal injury may not be assigned; nevertheless, by statute, the right of action vests in the spouse, parent, child or personal representation upon the death of the injured party, and is a form of the same cause of action. Southern Bell Tel. Co. v. Cassin, 111 Ga. 575, 36 S.E. 881. The contention of plaintiff's counsel to the effect that this cause of action will survive merely because it involves an assignable right is too broad to be conclusive.

In Harbour v. City of Rome, 54 Ga.App. 97, 187 S.E. 231, a suit by an administrator involving damage to realty during the decedent's lifetime, it was held that if the case had been construed as sounding in tort the right of action would have abated upon the owner's death. That case, however, was based on a constitutional provision and held not to sound in tort. Two cases involving damage to personal property, Leathers v. Raburn, 17 Ga.App. 437, 87 S.E. 754, and Administrators of Parrott v. Dubignon, 1 T.U.P. Charlt. 261, will be discussed later. Aside from these cases there appear to be no Georgia decisions dealing with the survival of tort actions involving property rights, and it is necessary to search the common law to decide the question. 'The common law of force prior to May 14, 1776, was adopted as the law of this state by the act of February 25, 1784, except where modified by statutes or not adjusted to the conditions or system of government existing here.' Harris v. Powers, 129 Ga. 74, 58 S.E. 1038. The common law consists of the decisions of the courts of England and the Acts of Parliament as they existed at that time. Tucker v. Adams, 14 Ga. 548. It is further subject to modification by the construction which has been put upon it by the courts of our state, but, except for the cases noted, we find no construction of this point in our own decisions. Therefore, as stated in Hollett v. Wilmington Trust Co., 6 W. W. Harr., Del., 170, 172 A. 763, 765, 'the law with respect to survivability of actions for torts is to be determined by a reference to the doctrine stated by Lord Mansfield, the statute of Edw. III and the statutory enactments of the state.'

In Moore v. Backus, 7 Cir., 78 F.2d 571, 573, 101 A.L.R. 379, the court held as follows: 'Whether his alleged causes of action survived to his administrators must be tested by the common law as supplemented by the early English statutes. For many centuries the maxim actio personalis moritur cum persona applied to all tort actions. In the fourteenth century, however, the English statute of 4 Edw. III, c. 7, was enacted, which limited and became a part of the common law. That statute is the basis of this controversy and reads as follows: 'Whereas in times past executors have not had actions for the trespass done to their testators, as of the goods and chattels of the same testators carried away in their life, and so such trespasses have hitherto remained unpunished; it is enacted that the executors in such cases shall have an action against the trespassers to recover damages in like manner as they, whose executors they be, should have had if they were in life.'' This statute was liberally construed by the English courts, as pointed out in Moore v. Backus, supra. In the case of Sale v. The Bishop of Lichfield, (1589) Owen 99, 74 Eng.Rep. 928, 101 A.L.R. 383, it was held to apply in an action for damages brought by an executor against one who had withheld a right of appointment to an archdeaconry, the court holding that the phrase taking of goods 'is but by way of resemblance, and not that they shall have an action of trespass for taking of goods only'.

It therefore appears that so far as injuries to personalty are concerned, the statute allowing to the executor of the injured party a right of action surviving the death of the owner has been construed both by the British courts prior to 1776 and by our Federal courts to refer to injury to personalty, tangible or intangible, and not as being limited to specific goods taken and carried away.

The statute of Edward III has been recognized and applied by our courts. In Administrators of Parrot v. Dubignon, supra 1809, the court held as follows: 'It is settled by the case of Hably v. Trot, Cowp. 371, that trover does not lie against an executor for a conversion by his testator * * *. This is not, however, the law e converso, for the action of trover can be sustained by an executor for a conversion in the lifetime of the testator. This law is founded upon the stat. 4 Ed. 3, 7.' If applicable to actions for conversion in this state, it is...