Green v. Johnson

• Decision Date: 01 December 1944
• Docket Number: No. 30515.,30515.
• Citation: 32 S.E.2d 443
• Parties: GREEN. v. JOHNSON.
• Court: Georgia Court of Appeals

32 S.E.2d 443

GREEN.

v.JOHNSON.

No. 30515.

Court of Appeals of Georgia, Division No. 1.

Dec. 1, 1944.

Syllables by the Court.

1. Under the common law the widow, suing as such, could not recover damages for the homicide of her husband.

2. The courts of this State will presume that the principles of the common law prevail and are of force in South Carolina (one of the thirteen original colonies), in the absence of any pleading to the contrary, for the redress of wrongs and injuries done there as recognized by the common law.

3. Where an action for a tort is brought in Georgia by the widow, in her own name as such, against the defendant, for the death of her husband caused by injuries which occurred in the State of South Carolina: Held, (a) the lex loci governs as to all substantive matters and the rights of the parties as to the merits of the case are to be governed by the laws of South Carolina, as distinguished from the procedure, and where no statute of the State of South Carolina is pleaded, it will be presumed that the common law is of force there, (b) The court erred in not sustaining the general demurrer that "the petition fails to set forth a cause of action." Cummings v. Montague, 116 Ga. 457, 42 S.E. 732.

Error from Superior Court, McDuffie County; C. J. Perryman, Judge.

Action in tort by Maybelle Johnson against Frank Green to recover for the death of plaintiff's husband caused by injuries which occurred in South Carolina. To review a judgment for plaintiff, defendant brings error.

Reversed.

Osgood Williams, of Crawfordville, and T. Reuben Burnside, of Thomson, for plaintiff in error.

Randall Evans Jr., and Jack D. Evans, both of Thomson, and Pierce Bros, of Augusta, for defendant in error.

MacINTYRE, Judge.

This was an action for a tort brought in Georgia by the widow for the death of her husband caused by injuries which occurred in the State of South Carolina.

The lex loci governs as to all substantive matters and the lex fori as to allmatters affecting the remedy or procedure. Hill v. Chattanooga Ry. & Light Co, 21 Ga. App. 104, 93 S.E. 1027; Hines v. Evitt, 25 Ga.App. 606(3), 103 S.E. 865; Lay v. Nashville, C. & St. L. R. Co, 131 Ga. 345, 62 S. E. 189.

Under the common law the widow could not recover damages for the homicide of her husband. Selma, R. & D. R. Co. v. Lacy, 43 Ga. 461. However, we have a statute in this State, Code, § 105-1302, which confers this right upon the widow, but the statute of this State has no extraterritorial operation, and the courts of this State can not administer it for the purpose of redressing tortious injuries inflicted in the State of South Carolina. Furthermore, the courts of this State will presume that the principles of the common law prevail and are of force in South Carolina (which was one of the thirteen original States) for redress of wrongs and injuries done there as recognized by the common law. "Where suit was brought in this state on account of a personal injury occurring in the state of Alabama [South Carolina], and no statute of that state was pleaded or shown, this court will presume that the common law was of force there." Southern R. Co. v. Cunningham, 123 Ga. 90(1), 50 S.E. 979. Where suit is brought in this State to recover damages for personal injuries sustained in a sister State, which was one of the thirteen original States, the rights of the parties as to the merits of the case as distinguished from procedure are to be determined by the law of such sister State, and where no statute of that sister State is pleaded or shown, it will be presumed that the common law is of force there. This suit being brought by the widow to recover damages for personal injuries sustained by her husband in the State of South Carolina, her rights as to the merits of the case will be determined by the common law and under the common law she can not recover damages for the death of her husband. Selma, R. & D. R. Co. v. Lacy, supra. The question, therefore, presents itself as to whether the general demurrer in the following language, "because the petitioner fails to set forth any cause of action against this defendant, " should have been sustained. The test as to whether a petition can resist a general demurrer is whether the defendant could admit all that which is alleged and escape liability. Douglas, A. & G. R. Co, 2 Ga.App. 550, 555, 59 S.E. 600. In Atlantic Coast Line R. Co. v. Barton 14 Ga.App. 160, 80 S.E. 530, 531, the defendant filed a general demurrer to the plaintiff's petition, and according to the original record on file in the clerk's office of this court, the demurrer was "upon the ground, that said petition fails to set out any legal cause of action against this defendant." In that case it will be noted that the court said: "While there is more or less confusion in some of the decisions on the subject, it is settled by the decisions of the Supreme Court that where a plaintiff bases his right to recover on a foreign law, the law must be pleaded and proved. Southern Exp. Co. v. Sottile [Bros.], 134 Ga. [40], 41, 67 S.E. 414; Southern Exp. Co. v. Hanaw, 134 Ga. [44], 446, 67 S.E. 944, 137 Am.St.Rep. 227. If the foreign law is properly pleaded, it may be that it need not be formally introduced in evidence, if the law is brought to the attention of the court and properly applied. Charleston & W. C. R. Co. v. Lyons, 5 Ga.App. 668, 63 S.E. 862; Missouri [State] Life Ins. Co. v. Lovelace, 1 Ga.App. 446, 58 S.E. 93. It is clear, however, under all of the decisions, that the law must be pleaded, or else the court will presume that the common law is of force, and will apply common-law principles, at least as to causes of action arising in one of the 13 original states or in a state which was carved from them. To plead a foreign law it is not enough to refer merely to the volume in which the law is contained. The law should be set out, so that the court may, on inspection of the pleadings determine whether or not the plaintiff has drawn a correct conclusion as to the construction and effect of the law. We will deal with the present petition, therefore, as if the plaintiff had predicated his right to recover upon the common law, ignoring the plaintiff's attempt to plead the South Carolina statute." But since this decision the Supreme Court has said: "Two principles are well settled by the decisions of this court. First, where a cause of action arises in another state and the pleadings are sufficient to show that a cause of action is set out under the laws of such other state, the rights of the parties will be administered according to the laws of such other state. Selma, &c, R. Co. v. Lacy, 43 Ga. 461; [Id.], 49 Ga. 106; Western, &c, R. Co. v. Strong, 52 Ga. 461, and numerous other decisions. Secondly, where in such a case no statute of the foreign state is pleaded as the basis of right of recovery, the courts of this state will presume that the common law exists in suchstate and will administer the rights of the parties according to the common law. The line of cases supporting the second proposition is unbroken." Slaton v. Hall, 168 Ga. 710, 715, 148 S.E. 741, 743, 73 A.L.R. 891. And Justice Jenkins speaking for that Court in the case of Trustees of Jessie Parker Williams Hospital v. Nisbet, 189 Ga. 807, 811, 7 S.E.2d 737, 741, has simplified and clarified one phase of the rule by stating: "(a) A contract of a foreign State which constituted one of the original thirteen colonies, or which was derived from territory included in one of such colonies, will be construed and governed by the common law, in the absence of any pleading to the contrary. Slaton v. Hall ^ra, 168 Ga. 710, 716, 148 S.E. 741, 73 A.L.R. 891; Thomas v. Shepherd, 42 Ga.App. 558 (1), 156 S.E. 724, and cit. * * * (c) These rules, however,...