Georgia R. & Banking Co. v. Tice
| Decision Date | 21 December 1905 |
| Citation | 52 S.E. 916,124 Ga. 459 |
| Parties | GEORGIA R. & BANKING CO. v. TICE et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A petition which contains two distinct causes of action in favor of different plaintiffs against the same defendant is defective; but the defect may be cured by an amendment eliminating one of the plaintiffs and one of the causes of action. Such a defect is one of form, and not of substance and must be taken advantage of by special demurrer filed at the first term.
When two causes of action against a defendant in favor of different plaintiffs are tried at one time as a result of the failure of the defendant to raise the objection to the misjoinder of the causes of action at a proper time, and a verdict for one sum in favor of both plaintiffs is rendered and no objection is raised at the time the verdict is received to the form in which the verdict is rendered, the irregularity in the form of the verdict is no sufficient reason for granting a new trial. The payment of the verdict as rendered to the parties jointly, or to their attorney of record, will discharge the defendant from liability to both of them on account of all matters alleged in the petition.
The rule in reference to the sequestration of witnesses does not apply to a witness who is a party to the case, even though there may be several parties on the same side who are all to be examined as witnesses.
The operation of a railroad by a lessee, in the absence of express statutory authority exempting the lessor from liability for the acts of the lessee, does not change the relation of the lessor company to the public, and the servants of the lessee company are, as to the acts for which the lessor company may be held liable, in legal contemplation as much the servants of the lessor as of the lessee, and are therefore not competent to serve as jurors in an action by a passenger for damages against the lessor, based upon an injury received as a result of the negligence of the servants of the lessee company.
In the absence of any consent or agreement, either expressed or implied, on the part of the husband, that the earnings of the wife shall be retained by her as her separate estate, they belong to him.
The damages that may be recovered by the husband for the loss of the services of his wife by reason of personal injuries are not confined to the value of her services in the household but may include the value of her services rendered in her husband's business, where she was thus engaged at the time of the injury without any contract or expectation of pay for the same.
The charge of the court, when considered as a whole, was free from any substantial error of which the defendant was entitled to complain. The evidence authorized the verdict, and the discretion exercised by the trial judge in refusing a new trial will not be controlled.
Error from City Court of Richmond County; W. F. Eve, Judge.
Action by Mahala J. Tice and others against the Georgia Railroad & Banking Company. Judgment for plaintiffs, and defendant brings error. Affirmed.
The rule in reference to the sequestration of witnesses does not apply to the witness who is a party to the case, even though there may be several parties on the same side to be examined as witnesses.
Mahala J. Tice and her husband, Charles Tice, jointly brought suit against the railroad company for injuries received by Mahala J. Tice while a passenger on a car operated on its railroad. The petition alleged that she boarded the train at a regular station, and entered a car made up of two compartments, and the car started before she reached the apartment provided for ladies, and just as she reached the nearest vacant seat therein a sudden jerk of the train threw her violently to the floor. In falling she struck a drummer's iron-bound sample case, which was leaning against the seat, injuring her leg and back, and received permanent injuries, for which she claims damages in the sum of $5,000. Charles J. Tice sues for the expense of doctors' bills, medicines, and nursing, etc., to which he has been put, and for such future expenses as he will likely incur, and for the loss of her domestic services, as well as her services as a clerk in a business in which he was engaged at the time of her injury. At the trial term the defendant interposed a written demurrer and an oral motion to dismiss the case upon the ground that there was a misjoinder of causes of action. Each was overruled, and the defendant excepted. When the panel of jurors was presented, upon the request of plaintiff's counsel, the court ascertained by inquiry that two of the jurors were employés of the operating company, a lessee of the defendant; whereupon the court ordered these two jurors to stand aside and that their places be filled. To the propounding of the question, and to the setting aside of the jurors, the defendant objected; and, the objection being overruled, the defendant excepted. A verdict for the plaintiffs of $5,000 was rendered by the jury. At the same term of court the defendant filed a motion in arrest of judgment, upon the ground that there was a misjoinder of causes of action. This motion was overruled, and the defendant excepted. A motion for a new trial was filed by the defendant, which was overuled, and the defendant excepted.
Jos. B. & Bryan Cumming and G. M. Beasley, for plaintiff in error.
Henry C. Roney, for defendants in error.
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. Therefore they cannot be properly joined in one suit. Civ. Code 1895,§ § 4938-4946. A petition by a husband and wife which sets forth a cause of action in favor of the wife and one in favor of the husband, although both arise out of the same transaction, is subject to the objection that there is in such petition a misjoinder of causes of action. Can this defect be cured by amendment eliminating one of the causes of action? The right to amend is exceedingly broad. Even where a cause of action is very defectively set forth, and parties are joined either as plaintiffs or defendants who have no concern with the cause of action, the defect as to the manner in which the cause of action is set forth may be cured by amendment, and the unnecessary parties may be eliminated in the same way. When a petition sets forth two complete causes of action in favor of different parties, but against the same defendant, there seems to be no good reason why an amendment should not be allowed striking therefrom one of the causes of action and one of the plaintiffs. The statute expressly authorizes the striking of a plaintiff improperly joined. Civ. Code 1895, § 5105. If one of the plaintiffs can be eliminated by amendment, which would leave the petition standing in favor of the other plaintiff, we see no reason why the cause of action peculiar to the plaintiff stricken might not be eliminated at the same time. Of course, it is, in such a case, for the two plaintiffs who have improperly joined their causes of action to determine between themselves which cause of action shall stand and which shall be eliminated. If, however, they do not voluntarily relieve the petition from the defect resulting from the misjoinder of the causes of action, upon objection raised at the proper time the defendant would be entitled to have the entire case dismissed.
As a general rule a defect in a petition which is amendable is cured by verdict. As under our system a misjoinder of causes of action could be eliminated before verdict by appropriate amendment, under the operation of the rule just referred to such a defect, unobjected to at the proper time before verdict, would be cured by the verdict. The defect, therefore, must be taken advantage of before verdict; but at what stage of the cause? Is it a defect of form, or a defect of substance? A petition might contain two causes of action in favor of different plaintiffs, each set forth with all the particularity and formality that could be required. In such a case there would be no defect of substance in the allegations of the petition, and the misjoinder of the two perfect and complete causes of action must, therefore, be merely a defect of form; that is, a defect in the manner in which the different plaintiffs have seen fit to bring into court that which each would have had the right to bring in a separate suit. Being a defect merely in the form in which the suit is brought, it must be taken advantage of by special demurrer filed at the first term, and the failure to file such demurrer at such term would be a waiver of the defect. See Lippincott v. Behre, 122 Ga. 546, 50 S.E. 467. We are aware that in the case of Governor v. Hicks, 12 Ga. 189, it was held that a misjoinder of improper parties plaintiff, as well as distinct causes of action, would be a good reason for dismissing the case on general demurrer, and for arresting the judgment after verdict. We are also aware that this decision is in accord with the rule at common law. But we think since the decision was rendered such radical changes have taken place in the practice and procedure in this state that under the existing law a misjoinder of causes of action between separate and distinct parties would only be ground for a special demurrer filed at the appearance term. The uniform procedure act of 1887 entirely obliterated the distinction between courts of law and courts of equity, so far as the form to be followed in bringing...
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