Dixon v. Ross, 36096

• Decision Date: 12 July 1956
• Docket Number: Nos. 1,No. 36096,2,36096,s. 1
• Citation: 94 S.E.2d 86,94 Ga.App. 187
• Parties: Gladys Murray DIXON v. Brantford D. ROSS et al
• Court: Georgia Court of Appeals

Page 86

94 S.E.2d 86

94 Ga.App. 187

Gladys Murray DIXON v. Brantford D. ROSS et al.

No. 36096.

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

July 12, 1956.

Syllabus by the Court

Where it appears that the plaintiff has recovered from her husband's employer under the Federal Employers' Liability Act for the husband's death resulting from a collision between the employer's train and the present defendant's truck, the present action for the husband's death against the truck owner is barred and the court did not err in sustaining the defendant's general demurrer to the petition and in dismissing the action.

Mrs. Gladys Murray Dixon sued Brantford ford D. Ross, doing business as Ross Trucking Company and Ross' insurance carrier, National Indemnity Company, for damages for the death of her husband allegedly caused by the defendant's negligence. The plaintiff's husband was employed by the Savannah & Atlanta Railway Company and was killed in a collision between one of his employer's trains and a truck owned and operated by Ross. This action is predicated on the negligent operation of the truck by Ross' driver. In an amendment to the petition the plaintiff alleged the following: 'That Mrs. Gladys Murray Dixon as administratrix of the estate of Thomas Charles Dixon, for the benefit of Mrs. Gladys Murray Dixon widow of Thomas Charles Dixon and for Thomas Neal Dixon age (10) years and Ted Eugene Dixon age (8) years, brought action in the Superior Court of Screven County, Georgia, against the Savannah & Atlanta Railway Company, under the Federal Employers' Liability Act, for negligence in the death of Thomas Charles Dixon, said case was tried and a verdict and judgment rendered in said case for the plaintiff for $10,000, which said judgment has been paid to Mrs. Gladys Murray Dixon as administratrix.'

The defendant's renewed general demurrer to the petition as amended was sustained and the action was dismissed and the plaintiff excepts.

H. C. Hatcher, Waynesboro, for plaintiff in error.

Fulcher, Fulcher & Hagler, John F. Hardin, William C. Reed, Augusta, for defendants in error.

FELTON, Chief Judge.

The defendant in error contends that the recovery under the Federal Employers' Liability Act for the death of the husband and father bars the present action. The contention is meritorious.

The decedent was survived by his widow and two minor children. The F.E.L.A., 45 U.S.C.A. § 51, gave the right of action against the railroad to the personal representative of the decedent for the benefit of the widow and children. The Georgia statute vests the right of action in the case of wrongful death of a husband and father in the widow, Code, § 105-1302, to be held by her subject to the law of descents, as if it were personal property descending to the widow and children from the deceased. Code, § 105-1304. So, under the facts of this case, the right of action which would have accrued under the State statute would have been for the benefit of the same persons as benefited from the action under the Federal statute.

The amount of recovery under the F.E.L.A. is so nearly equivalent to that recoverable under Georgia law and is so substantially based on the same principal factor, to wit, earning capacity, that recovery under both laws would amount to a double recovery for the same wrong, despite the fact that under State law the recovery could theoretically be larger than the recovery under the F.E.L.A. Compare 45 U.S.C.A. § 51, Notes 1553-1557, pp. 842-847; Central of Georgia Railway Co. v. Goens, 30 Ga.App. 770(7), 119 S.E. 669, with Code, § 105-1308 catchwords 'Measure of damages'.

There can be only one recovery for damage by joint tort-feasors, Donaldson v. Carmichael, 102 Ga. 40, 42, 29 S.E. 135, and this applies even though the joint tort-feasors could not be joined in the same action under the Federal statute. Griffin Hosiery Mills v. United Hosiery Mills, 31 Ga.App. 450, 120 S.E. 789; Friedlander v. Feinberg, 27 Ga.App. 808(2), 110 S.E. 26. As was stated in Southern Railway Co. v. Allen, 88 Ga.App. 435, 77 S.E.2d 277, it would be monstrous to allow a recovery for a wrongful death under the State statute from one joint tort-feasor when there has been a recovery for the same death under the Federal statute from the other joint tort-feasor. The plaintiff had the option of suing the railroad by itself under the Federal statute or of suing either or both the railroad and the trucking company under the State statute, Southern Ry. Co. v. Allen, supra, and since she has exercised that option by suing the railroad and recovering under the Federal statute, she cannot now sue the trucking company under the State law.

The court did not err in sustaining the general demurrer to the amended petition and in dismissing the action.

Judgment affirmed.

GARDNER, P. J., and TOWNSEND, CARLISLE and NICHOLS, JJ., concur.

QUILLIAN, J., dissents.

QUILLIAN, Judge (dissenting).

I dissent from the majority opinion. The Georgia courts have never held, except for the obiter expression contained in Southern Railway Co. v. Allen, 88 Ga.App. 435, 77 S.E.2d 277, referred to in the majority opinion, that a separate right of action arises out of a single wrong jointly committed by joint tort-feasors, and the prosecution and satisfaction of one of such rights debars recovery of the other.

Of course where the misconduct or negligence of several tort-feasors combines to proximately cause damage to another for which under the law the injured party has a single right of action, the satisfaction of such right extinguishes it altogether, inures to the benefit of all parties liable, and debars a further...