Maryland Cas. Co. v. Lanham

• Citation: 53 S.E. 395,124 Ga. 859
• Parties: MARYLAND CASUALTY CO. v. LANHAM.
• Decision Date: 16 February 1906
• Court: Georgia Supreme Court

53 S.E. 395

124 Ga. 859

MARYLAND CASUALTY CO. v. LANHAM.

Supreme Court of Georgia

February 16, 1906

Syllabus by the Court.

Where a suit was brought against a minor for a tort alleged to have been committed by him, and personal service was made upon him, but no guardian ad litem was appointed, under Civ. Code 1895, § 4987, the suit was not in proper condition to proceed to judgment by default against the minor; and where a judgment was thus rendered, it was properly set aside on motion duly made therefor.

Where a company insured plate glass windows against breakage, if one of them was broken by reason of the tortious conduct of a person who threw a rock against it, and there upon the insurance company, by agreement with the insured, expended a certain amount in replacing the glass, claimed to be subrogated to the rights of the insured against the wrongdoer, and brought suit against him for the tort, as between the plaintiff and the defendant the amount of damages was not liquidated, but under Civ. Code 1895, § 5073 although the case was in default, it was necessary to introduce evidence in order to establish the amount of such damages.

It was provided by the act of September 27, 1883 (Acts 1882-83, p 538, § 9), that in the city court of Floyd county the trial of all issues of fact "shall be by the court, without a jury, except where either party in a civil case, or the defendant in a criminal case, shall, in writing, demand a trial by jury."

In an action for a tort, where there is some fixed rule for measuring damages, the jury may, under proper circumstances increase the amount by adding interest, but the verdict should be for one aggregate sum, and should not find an amount as principal and a separate amount as interest.

Error from City Court of Floyd County; Harper Hamilton, Judge.

Action by the Maryland Casualty Company against Willie Lanham. Judgment for plaintiff. Motion by defendant, by his next friend, H. Lanham, to vacate the judgment. Judgment vacated and plaintiff brings error. Affirmed.

Lipscomb & Willingham, for plaintiff in error.

Seaborn & Barry Wright, for defendant in error.

LUMPKIN, J. (after stating above facts).

1. "Infancy is no defense to an action for a tort, provided the defendant has arrived at those years of discretion and accountability prescribed by this code for criminal offenses." Civ. Code 1895, § 3904. As to the liability of an infant for torts, see, also, 36 Am. Law Rev. 371. This rule refers to the liability of an infant for his torts, and not to the proper manner of bringing suits against him therefor. So likewise the rule that the exemption of an infant generally from liability on his contracts is a personal privilege (Civ. Code 1895, § 3649) does not affect the proper method of suing and serving an infant. The rule was long since announced that a suit brought against a minor should be defended in his own name, but that a guardian ad litem should be appointed for him; and that this power of appointment was one incident to the court. Nicholson v Wilborn, 13 Ga. 467; Oliver v. McDuffie, 28 Ga. 522; Jack v. Davis, 29 Ga. 219; Kilpatrick v. Strozier, 67 Ga. 247; Burnett v. Summerlin, 110 Ga. 349, 35 S.E. 655. Under the act of 1854 (Civ. Code 1895,§ § 4863, 4864), authorizing the judges of the superior courts in chambers, upon petition, to change trustees or order a sale of trust property, etc., and providing that if minors were interested and had no guardians, guardians ad litem should be appointed and notified before the cause proceeded, it became the practice not to notify the infant, but to appoint a guardian ad litem to represent him, and this was held to be sufficient until the act of 1876 was passed, which provided differently. Harvey v. Cubbedge, 75 Ga. 792; Adams v. Franklin, 82 Ga. 168, 8 S.E. 44. That act required personal service on the minor. Acts 1876, p. 103. As amended by the act of 1879 (Acts 1878-79, p. 140), it is codified in section 4987 of the Civil Code of 1895. By that section it is provided that "if the minor is under the age of 14 years, service is...