Georgia Ry. & Power Co. v. Endsley

• Decision Date: 08 December 1928
• Docket Number: 6364.
• Citation: 145 S.E. 851,167 Ga. 439
• Parties: GEORGIA RY. & POWER CO. v. ENDSLEY.
• Court: Georgia Supreme Court

145 S.E. 851

167 Ga. 439

GEORGIA RY. & POWER CO. v. ENDSLEY.

No. 6364.

Supreme Court of Georgia

December 8, 1928

Syllabus by the Court.

Where injuries to the person and the physical property of an injured party grow out of a single wrongful or negligent act the tort to the person and property constitutes a single cause of action, which should be presented for determination in a single suit.

But where in such a case the injured party brings one action to recover for the property damage only, and thereafter files another suit in which damages are sought solely for the personal injuries, and the defendant files defenses in each action, but does not object to either on the ground of "another action pending" until after judgment is rendered in favor of the plaintiff in the property damage suit, the defendant will be presumed to have consented to the splitting of the cause of action, and will not then be permitted to plead the property judgment in bar of the action for personal injuries.

Certiorari from Court of Appeals.

Action by Mrs. G. M. Endsley against the Georgia Railway & Power Company. Judgment for defendant was reversed by the Court of Appeals (37 Ga.App. 439, 140 S.E. 386), and the defendant brings certiorari. Affirmed, with direction.

Colquitt & Conyers and Sidney Smith, all of Atlanta, for plaintiff in error.

G Seals Aiken, of Atlanta, for defendant in error.

FORTSON Superior Court Judge.

On March 25, 1926, Mrs. G. M. Endsley brought a suit in the municipal court of Atlanta, to recover for damage done to her automobile in a collision with a street car of the defendant the Georgia Railway & Power Company. On March 26, 1926, she brought suit against the same defendant in the superior court of Fulton county, to recover damages for injuries alleged to have been sustained to her person in the same collision. No plea in abatement was filed to either suit on the ground that another action was pending, but, on the contrary, to each action the defendant pleaded simply a general denial of liability. On May 18, 1926, the plaintiff obtained a verdict and judgment in the municipal court for $50, which was paid by the defendant. Thereafter, on September 3, 1926, the defendant filed a plea in bar to the suit in the superior court, averring that the damage to the plaintiff's property and the alleged injuries to her person were occasioned by the same tortious act, and constituted but a single cause of action, and that, as the plaintiff had "elected to bring, maintain, and prosecute to judgment and payment" the suit for property damage, she is estopped from proceeding further with the suit for personal injuries. The plaintiff demurred to this plea, on the ground that the two suits "do not constitute a single cause of action," and on the further ground that "the defendant knew the suit in the municipal court was pending at the time it filed its answer to the suit in the superior court, as shown on the face of its amended answer and plea, and did not elect to file a plea of lis pending (sic) at the time as required by law." The judge of the superior court overruled the demurrer, sustained the plea, and dismissed the suit. The plaintiff excepted and carried the case to the Court of Appeals, where the judgment of the superior court was reversed on the ground that injury to person and damage to property occasioned by the same act or acts of negligence constitute two separate and distinct causes of action. 37 Ga.App. 439, 140 S.E. 386. The defendant then made application to this court for writ of certiorari, which was granted.

1. It is well settled that a single tortious act which causes only personal injuries, gives to the injured individual but a single right of action, no matter how varied or numerous the injuries may be. 1 C.J. 1117, note 2. It is equally as well agreed that but one action may be maintained for a single wrongful or negligent act which destroys or damages numerous items of another's property. 1 C.J. 1117; 1 R.C.L. 346. See, also, Oglesby v. Stodghill, 23 Ga. 590; Cunningham v. Norris, 19 Ga. 583, 65 Am.Dec. 611. It is true that there are certain expressions in the decision of Pearson v. Reid, 10 Ga. 580, cited by the Court of Appeals, which indicate that separate items of damage to property growing out of a single trespass constitute two causes of action, but a careful reading of that decision discloses that it was based on the rule then obtaining as to the allowance of amendments at the trial term, and that the expressions referred to were obiter. And in harmony with the principle just enunciated, the great weight of authority in this country is to the effect that a single tortious act which causes another to suffer both personal injury and property damage constitutes but one cause of action. Birmingham S. R. Co. v. Lintner, 141 Ala. 420, 38 So. 363, 109 Am.St.Rep. 40, 3 Ann.Cas. 461; Kimball v. L. & N. R. Co., 94 Miss. 396, 48 So. 230; Fields v. Philadelphia R. T. Co., 273 Pa. 282, 117 A. 59; Nokken v. Avery Mfg. Co., 11 N.D. 399, 92 N.W. 487; Doran v. Cohen, 147 Mass. 342, 17 N.E. 647; Baltimore & O. R. Co. v. Ritchie, 31 Md. 191; Seger v. Barkhamsted, 22 Conn. 295; Chicago, etc., R. Co.v. Ingraham, 131 Ill. 659, 23 N.E. 350; Lamb v. St. Louis, etc., R. Co., 33 Mo.App. 489; King v. Chicago, etc., R. Co., 80 Minn. 83, 82 N.W. 1113, 50 L.R.A. 161, 81 Am.St.Rep. 238; Mobile R. Co. v. Matthews, 115 Tenn. 172, 91 S.W. 194; Sprague v. Adams, 139 Wash. 510, 247 P. 960, 47 A.L.R. 529; Cassidy v. Berkovitz, 169 Ky. 785, 185 S.W. 129.

There is, however, on the last proposition, American authority to the contrary. See Reilly v. Sicilian Paving Co., 170 N.Y. 40, 62 N.E. 772, 57 L.R.A. 176, 88 Am.St.Rep. 636; Ochs v. Public Service R. Co., 81 N. J. Law, 661, 80 A. 495, 36 L.R.A. (N. S.) 246, Ann.Cas. 1912D, 255; Watson v. Text. etc., R. Co., 8 Tex. Civ. App. 144, 27 S.W. 924; Boyd v. A. C. L. R. Co. (D. C.) 218 F. 653. In these contra decisions (which follow the ruling laid down in the English case of Brunsden v. Humphrey, L. R. 14 Q. B. D. 141), a number of reasons are advanced to support the conclusion that two causes of action arise where a single tortious act injures both person and property. It is argued that, because the period of limitation prescribed for an action involving personal injuries is different from that relating to property damage, two causes are indicated; and the same conclusion is urged because of the different rules relating to damages for the two classes of injuries, and also because the law respecting assignment and abatement and survival of actions is not the same. But the rule seems to be bottomed on the theory that the gravamen of an action in tort is the damage resulting from the wrongful act, rather than the wrongful act itself, and that this is true because a tortious act can become actionable only when some damage is suffered by the plaintiff. Thus the Court of Appeals in this case declares: "In our construction of the statutes and decisions in this State, the cause of action is composed not simply of the negligent or wrongful act of the opposite party, but necessarily includes the damage which the injured party sustains. The code provides that for every violation of a contract express or implied and for every injury done by another to person or property, the law gives a right to recover and a remedy to enforce it, and that damages are given for the injury sustained. Civil Code (1910), §§ 3652, 4390, 4502. It is true that if the injury be small or the mitigating circumstances be strong, nominal damages only are given; and in some cases damages are awarded when no actual damage whatever has been proved. But in all cases the element of damage must enter in some way before a suit is maintainable in tort, and so it is provided that general damages are such as the law presumes to flow from any tortious act and may be recovered without proof of any amount. Civil Code (1910), § 4507; Nat. Exchange Bank of Augusta v. Sibley, 71 Ga. 726. 'In a popular sense, the word "damage" does frequently mean depreciation in value, whether such depreciation is caused by a wrongful or a lawful act; but in statutes or other legal instruments giving compensation for "damages" the word always refers to some actionable wrong-some loss, injury, or harm which results from the unlawful act, omission, or negligence of another.' Austin v. Augusta Terminal Ry. Co., 108 Ga. 671, 674 (34 S.E. 852, 47 L.R.A. 755). The damage, therefore, in this State is the gravamen of the action, and hence, in a case of this sort, the injury to the plaintiff's person and the damage to his property constitute different causes."

If the reasoning there given be correct-if the gravamen of the cause is the damage-it would follow that a separate cause arises for each item of damage that flows from a tortious act which, as we have seen, is not the law either in the United States or in England. And, if a separate cause does not arise for each injury inflicted, we obviously must look elsewhere for the essence of the cause of action. It is true that it is argued that but a single right is invaded when personal injuries are inflicted, and but a single right is infringed when property is damaged, regardless of the number of items of injury in each case; and that the plaintiff therefore is entitled to but a single action for each class of damage, but that as to each class a separate and distinct cause of action arises. This argument is too metaphysical for practical application; and, it seems to us (as was said by Chief Justice Coleridge in dissenting from the ruling in the Brunsden Case), "it is a subtlety not warranted by law to hold that a man cannot bring two actions if he is injured in his arm and in his leg, but can bring two if besides his arm...