Pritchard v. Savannah St. & R. R. R. Co

• Decision Date: 27 May 1891
• Court: Georgia Supreme Court
• Parties: Pritchard v. Savannah St. & R. R. R. Co.

13 S.E. 493

87 Ga. 294

Pritchard

v.Savannah St. & R. R. R. Co.

Supreme Court of Georgia.

May 27, 1891.

Action fob Personal Injuries—Abatement.

An action against a railroad company for personal injuries, pending when the act of November 12, 1S89, amending section 2967 of the Code, was passed, was not abated by the death of the plaintiff; nor is that act, as applicable to actions pending at the time of its passage, unconstitutional.

(Syllabus by tbe Court.)

Error from superior court, Chatham county; R. Falligant, Judge.

Jackson & Whailey and A. C. Wright, for plaintiff in error.

Lawton & Canning-bam, for defendant in error.

Lumpkin, J. The first proposition stated in the above head-note was settled by this court in the case of Johnson v. Brad-street Co., 13 S. E. Rep. 250, (decided at the present term.) In that case, however, the main question was whether or not the above-mentioned section of the Code applied to actions for libel, and no question was raised in the argument as to the applicability of the amending act to pending suits, or its constitutionality as to them, if held applicable. This court, in the case just mentioned, considered the first of these questions, and decided that the actdid apply to actions pending at the time of its passage, but did not discuss it in exten so in the opinion. The constitutional question was not considered or decided in that case. We will now examine both of them.

As stated in the case above cited, the language of the act seems sufficiently broad and comprehensive to include pending actions. The law, as amended, reads: "Nor shall any action of tort for the recovery, " etc., "abate by the death of either party." The words "any action" may as well mean any action now in existence as any action hereafter commenced, and it is not straining to give them this interpretation. In Bailey v. State, 20 Ga. 742, very similar reasoning is used. The legislature had passed an act declaring " who are qualified to serve as jurors in criminal cases, "and its first section enacted that certain described persons shall be "liable to serve as jurors upon the trial of all criminal cases." The second section began: "When any person stands indicted, " etc. Judge Bknning said: "'Criminal cases' is an expression that includes criminal cases of every sort." "'All criminal cases' includes criminal cases of every kind." "'Any person' is a universal term." The act in question was accordingly held applicable to cases happening before its passage. A Vermont act, providing that in case of the removal of sheriff or high bailiff from the state an action of scire facias may be brought directly upon the recognizance of such officer, was held to apply to all causes of action, whether existing at the time it took effect or accruing thereafter, although the act contained no provision expressly applying it to pending actions. Hine v. Pomeroy, 39 Vt. 211. In Kimbray v. Draper, L. R. 3 Q. B. 160, it was held that a statute requiring plaintiffs to give security for costs in certain cases applied to such cases then pending; citing Wright v. Hale, 6 Hurl. & N. 227, in which it was held that when the plaintiff in any action recovers less than five pounds, he shall not be entitled to any costs if the judge certifies to deprive him of them, and the judge may so certify in an action commenced before the passage of the act. In Hepburn v. Curts, 7 Watts, 300, it was held that the legislature may pass laws affecting "suits pending, and give to a party a remedy which he did not previously possess, or modify an existing remedy, or remove an impediment in the way of recovering redress by legal proceedings." An action of assumpsit was proceeding in the name of a firm, which included among its members one Samuel Hepburn, against another firm of which the same man was also a member. Defendants insisted that the suit could not be maintained, because the same person was among both the plaintiffs and the defendants. The objection was sustained, and a bill of exceptions taken. While these proceedings were pending, the legislature passed an act providing in effect that an action brought by one firm against another should not abate by reason of one individual being a member of both firms, and it was held that this act applied to the case then pending. A mar ried woman sued alone for personal injuies to herself, when she had no right to bring such action without being joined therein by her husband. While her case was pending, the legislature of Wisconsin passed an act authorizing married women to bring such suits alone, and it was held that this act applied to her pending suit, and made it good, even though it must have been abated if a motion to that effect had been made before the passage of the act. McLimans v. City of Lancaster, 63 Wis. 596, 23 N. W. Rep. 689. This act was also distinctly held not to be unconstitutional, although retroactive as to the case peuding, because it affected only the remedy. In Weldon v. Winslow, 13 Q. B. Div. 784, it was held that a married woman might, by virtue of the married woman's property act of 1882, sue alone for a tort committed before the act came into operation, the law, before the passage of that act, being that she could not sue without joining her husband with her in the action.

Being satisfied that our act of 1889, now under consideration, was intended to, and does, apply to pending actions, we will now inquire into its constitutionality. It will be noticed that some of the following authorities are also applicable to the question just disposed of. Section 6 of the Code provides that "laws looking only to the remedy or mode of trial, may apply to contracts, rights, and offenses entered into, or accrued or committed prior to their passage." The constitution of 1865 forbade the passage of "retroactive laws, injuriously affecting any right of the citizen. " No provision against retroactive legislation appears in the constitution of 1868. That of 1877 forbids the passage of a "retroactive law." Construing together the above constitutional provisions in connection with the section of the Code cited, we take it that they all amount to substantially the same thing, and mean that retroactive laws, which do not injuriously affect any right of the citizen, that is to say, laws curing defects in the remedy, or confirming rights already existing, or adding to the means of securing and enforcing the same, may be passed. In Boston v. Cummins, 16 Ga. 102, it was held that "retrospective laws often operate for the benefit of society, and to repudiate them altogether would be to obliterate a large portion of the statute law of the state: " and accordingly it was ruled that a registry act, requiring deeds to be recorded within a limited time, applied to deeds executed before the passage of the act. In the same volume, in Knight v. Lasseter, 151, it was held that an act operating only on the remedy, though retrospective, was not unconstitutional. The legislature of Mississippi passed an act authorizing a court of chancery to refuse confirmation of a sale, provided the party objecting to the confirmation would make a certain bond, and it was held that the provisions of this act applied to a sale made under a mortgage executed prior to the passage of the act, and that as the act affected the remedy only, and not. the mortgagee's contract rights, it was not, therefore, unconstitutional. Before thepassage of this act the power of a chancery court to set aside a sale was much more limited. Chaffe v. Aaron, 62 Miss. 29. It is not unconstitutional for the legislature to take away a right which is not vested, but contingent upon some event subsequent to the date of the statute. Before the occurrence transpires upon which an inchoate right is to become vested and unalterable, a law may be passed providing, in effect, that the happening of such occurrence shall not make that right complete. Thus, a joint tenancy may be converted into a tenancy in common, thereby destroying the right of survivorship, and the statute will apply to estates already vested at the time of its enactment. Burgbardt v. Turner, 12 Pick. 538; Bambaugh v. Bambaugh, 11 Serg. & R. 191. So an estate tail may be changed into a fee-simple, and thereby destroy a remainder limited upon the fee-tail. De Mill v. Lock-wood, 3 Blatchf. 56. It has been often held that the right of dower, before it becomes consummated by the death of the husband, may be taken away or changed at the pleasure of the legislature. Lucas v. Sawyer, 17 Iowa, 517; Noel v. Ewing, 9 Ind. 37; Hamilton v. Hirsch, 2 Wash. T. 2231; Morrison...