Miller v. Straus

• Decision Date: 17 November 1928
• Docket Number: 18845.
• Citation: 145 S.E. 501,38 Ga.App. 781
• Parties: MILLER v. STRAUS.
• Court: Georgia Court of Appeals

145 S.E. 501

38 Ga.App. 781

MILLER v. STRAUS.

No. 18845.

Court of Appeals of Georgia

November 17, 1928

Syllabus by the Court.

The demurrer filed by the plaintiff in error, as to the sole ground thereof which is urged in this court, was speaking in character, and for that reason alone was properly overruled.

[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Speaking Demurrer.]

Moreover the demurrer was without merit, even assuming that it raised the point relied on by the plaintiff in error. In this state a husband is now liable for the torts of his wife only when they are committed by her in the capacity of agent; and where it is sought to hold the husband liable for some wrong committed by her within the scope of her agency, a suit may be maintained against the husband without joining the wife as a party defendant. If both are named as defendants, but the wife is not served, such lack of service as to the wife is no cause for dismissing the suit as to the husband.

The court did not err in overruling the demurrer filed by the defendant husband.

Error from Superior Court, Fulton County; E. E. Pomeroy, Judge.

Suit by J. W. Straus against W. V. Miller and wife. Judgment for plaintiff, and defendant named brings error. Affirmed.

H. W McLarty, of Atlanta, for plaintiff in error.

E. E. Carter and G. Seals Aiken, both of Atlanta, for defendant in error.

BELL J.

J. W. Straus brought suit against W. V. Miller and his wife, Mrs. W. V. Miller, to recover damages for personal injuries alleged to have been sustained by him as a result of his being struck by an automobile driven by Mrs. Miller. Service was perfected upon Mr. Miller, but not upon Mrs. Miller. Mr. Miller filed a general demurrer to the petition, and, this demurrer being overruled, he excepted.

The petition contained allegations as to the negligence of Mrs. Miller, and, as against demurrer, showed sufficiently that such negligence was the proximate cause of the plaintiff's injuries. The petition further alleged:

"That the Dodge sedan automobile which struck plaintiff was owned and kept by W. V. Miller as a family car, and that it was being driven by his wife at the time in question, with his knowledge and consent, in the prosecution and within the scope of his business, and that W. V. Miller is therefore liable to the plaintiff for the injuries sustained by the latter as the result of the negligence of Mrs. W. V. Miller as set out in this complaint"; and "that the defendant Mrs. W. V. Miller is also liable to the plaintiff for the injuries sustained by him as the result of her negligence as set out in this complaint."

The only ground of demurrer which is argued in this court is that the suit cannot be maintained against the husband unless it is prosecuted jointly against him and his wife, and that, since no service has been made upon the wife, that suit should be dismissed as to the defendant husband. A demurrer based upon facts not alleged in the pleading which it attacks is a speaking demurrer. Such a demurrer presents no question for decision, and should never be sustained. Reid v. Caldwell, 120 Ga. 718 (5), 48 S.E. 191; Charleston & Western Carolina Ry. Co. v. Burckhalter, 138 Ga. 154 (2), 74 S.E. 1076; Miller v. Southern Ry. Co., 21 Ga.App. 367 (3), 94 S.E. 619. That Mrs. Miller had not been served was not a fact which appeared from the allegations of the petition, and, even if such fact were material to the other defendant, it could not be taken advantage of by a demurrer to the petition. Pollard v. Blalock, 147 Ga. 406 (2), 94 S.E. 226; Hicks v. Beacham, 131 Ga. 89 (2), 62 S.E. 45; Griffin v. Russell, 144 Ga. 275 (2), 87 S.E. 10, L.R.A. 1916F, 216, Ann.Cas. 1917D, 994.

But even assuming that the demurrer properly raised the question as to the necessity of service upon Mrs. Miller, there is absolutely no merit in the point. At common law a husband was liable for the torts of his wife solely in virtue of their relation; but whether under...