Dixon v. Ross, No. 36096

CourtUnited States Court of Appeals (Georgia)
Writing for the CourtFELTON; QUILLIAN; QUILLIAN
Citation94 S.E.2d 86,94 Ga.App. 187
Docket NumberNos. 1,No. 36096,2
Decision Date12 July 1956
PartiesGladys Murray DIXON v. Brantford D. ROSS et al

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.

Page 87

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 [94 Ga.App. 188] case was tried and a verdict and judgment rendered in said case for the

Page 88

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...

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4 practice notes
  • Crowder v. Gordons Transports, Inc., No. 19556.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 23 Diciembre 1969
    ...Any excess is subject to the $25,000 applicable Missouri limitation. We note, in passing, that it might be argued that Dixon v. Ross, 94 Ga.App. 187, 94 S.E.2d 86 (1956), contains implications contrary to the result we reach. The court there held that FELA recovery, pursuant to a jury verdi......
  • Janelle v. Seaboard Coast Line R. Co., No. 75-3174
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 24 Diciembre 1975
    ...would have been for the benefit of the same persons as benefited from the action under the Federal statute". Dixon v. Ross, 1956, 94 Ga.App. 187, 94 S.E.2d 86. But two of the appellants in this case contend that they, the adult children of the decedent, were not represented in the prio......
  • Barge-Wagener Const. Co. v. Morales, BARGE-WAGENER
    • United States
    • Supreme Court of Georgia
    • 24 Mayo 1993
    ...The wrongful death action, like death benefits under workers' compensation, are rights vested in the surviving family. Dixon v. Ross, 94 Ga.App. 187, 188, 94 S.E.2d 86 The sickness and burial expenses are not like death benefits; they are for the benefit of the decedent's estate. As such, t......
  • Bibb County v. McDaniel, No. 47441
    • United States
    • Georgia Court of Appeals
    • 25 Septiembre 1972
    ...do so in the same action might subject the plaintiff, on a suit against Bibb County to a successful plea of res judicata. Dixon v. Ross, 94 Ga.App. 187, 94 S.E.2d 3. Under the provisions of Code § 95-1001 counties are primarily liable and may be sued for injuries caused by defective bridges......
4 cases
  • Crowder v. Gordons Transports, Inc., No. 19556.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 23 Diciembre 1969
    ...Any excess is subject to the $25,000 applicable Missouri limitation. We note, in passing, that it might be argued that Dixon v. Ross, 94 Ga.App. 187, 94 S.E.2d 86 (1956), contains implications contrary to the result we reach. The court there held that FELA recovery, pursuant to a jury verdi......
  • Janelle v. Seaboard Coast Line R. Co., No. 75-3174
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 24 Diciembre 1975
    ...would have been for the benefit of the same persons as benefited from the action under the Federal statute". Dixon v. Ross, 1956, 94 Ga.App. 187, 94 S.E.2d 86. But two of the appellants in this case contend that they, the adult children of the decedent, were not represented in the prio......
  • Barge-Wagener Const. Co. v. Morales, BARGE-WAGENER
    • United States
    • Supreme Court of Georgia
    • 24 Mayo 1993
    ...The wrongful death action, like death benefits under workers' compensation, are rights vested in the surviving family. Dixon v. Ross, 94 Ga.App. 187, 188, 94 S.E.2d 86 The sickness and burial expenses are not like death benefits; they are for the benefit of the decedent's estate. As such, t......
  • Bibb County v. McDaniel, No. 47441
    • United States
    • Georgia Court of Appeals
    • 25 Septiembre 1972
    ...do so in the same action might subject the plaintiff, on a suit against Bibb County to a successful plea of res judicata. Dixon v. Ross, 94 Ga.App. 187, 94 S.E.2d 3. Under the provisions of Code § 95-1001 counties are primarily liable and may be sued for injuries caused by defective bridges......

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