Rd.Way Express Inc v. Jackson

• Decision Date: 18 June 1948
• Docket Number: No. 32020.,32020.
• Citation: 48 S.E.2d 691
• Parties: ROADWAY EXPRESS, Inc. et al. v. JACKSON.
• Court: Georgia Court of Appeals

48 S.E.2d 691

ROADWAY EXPRESS, Inc. et al.

v.JACKSON.

No. 32020.

Court of Appeals of Georgia, Division No. 1.

June 18, 1948.

Rehearing Denied July 8, 1948.

Syllabus by the Court.

1. Upon the death of a mother suing for the negligent homicide of her child, under the Code, § 105-1307, the temporary administrator upon her estate may be made a party plaintiff to the action.

2. Except in cases of railway employees injured by the negligence of fellow servants, it is not generally necessary for the plaintiff to negative in his petition his negligence in an action based on the negligence of the defendant.

3. A motor carrier and its indemnity insurer may be joined as defendants in a tort action based on the negligence of the carrier.

4. A petition in a suit against a motor carrier and its indemnity insurer is not demurrable because the policy is not attached where it appears that it is in the possession of the defendants, and its contents known by each of them, and no copy being in the possession of the plaintiff.

5. The demurrers to the allegations of the petition as to the speed of defendant's truck, and the distance the child had gone from the sidewalk when struck by the truck, and the width of the street on which the child was struck were properly overruled.

6. The allegations of the petition dealt with in the corresponding division of the opinion were relevant and sufficient to withstand the special demurrers thereto.

7. and 8. The demurrers to the allegations of the petition as to the manner in which the truck was operated, and that the defendants were negligent in operating the truck without a bumper thereon, dealt with in the corresponding divisions of the opinion were without merit.

9. Negligence may be alleged in the violation of rules promulgated by the Georgia Public Service Commission, and the special demurrers to these allegations were properly overruled.

10. Negligence may be alleged based on the violation of a State law, and the demurrer to these allegations was not meritorious.

11. The demurrers to the allegations as to the past and future earning capacity of the child for whose death the plaintiff sued were properly overruled.

Error from Superior Court, Fulton County; Walter C. Hendrix, Judge.

Suit by Mrs. Ethel P. Jackson against Roadway Express, Incorporated, as a carrier of goods, wares, and merchandise, and Fidelity & Casualty Company of New York, insurer, for negligent homicide of plaintiff's child. To review ruling allowing motion to make Clarence E. Jackson, as temporary administrator of plaintiff's estate, a party upon death of plaintiff after filing suit, and rulings overruling special demurrers, defendants bring error.

Affirmed.

John M. Slaton, of Atlanta, for plaintiffs in error.

Hewlett & Dennis and T. F. Bowden, all of Atlanta, for defendant in error.

PARKER, Judge.

Mrs. Ethel P. Jackson sued Roadway Express, Inc., as a carrier of goods, wares and merchandise, and Fidelity and Casualty Company of New York, its insurer, for damages for the alleged negligent homicide of her eight-year-old child. The plaintiff died after the filing of the suit and a written motion was made to have Clarence E. Jackson, as temporary administrator on her estate, made a party plaintiff in the suit. The defendants demurred to the motion on the ground that the law did not allow a temporary administrator to be made a party in a case of this kind, the mother only having the right to sue for the homicide of a child upon whom she was dependent, if living, and if not living, the right of action being in the father; and upon the ground that the action abated upon the death of the mother. The motion was allowed and the administrator made a party. A number of special demurrers were also filed by the defendants and overruled. The defendants excepted to these rulings and brought the case to this court.

1. The action was brought under the Code, § 105-1307, as follows: "A mother, or, if no mother, a father, may recover for the homicide of a child, minor or sui juris, upon whom she or he is dependent, or who contributes to her or his support, unless said child shall leave a wife, husband, or child. The mother or father shall be entitled to recover the full value of the life of such child." Two statutes contained inthe Code are relied upon by the plaintiff to sustain the action of the court in making the administrator a party plaintiff. "When a plaintiff in any cause shall die, the executor or administrator of such plaintiff may be made a party on motion, to be made in writing, of which the defendants or their counsel shall have notice." Code, § 3-401. This is a codification of the Act of 1859, p. 49. Another statute relating to the survival of actions for tort is in part as follows: " * * * nor shall any action for the recovery of damages for homicide, injury to person, or injury to property abate by the death of either party; but such cause of action, in case of the death of the plaintiff, shall, in the event there is no right of survivorship in any other person, survive to the personal representative of the deceased plaintiff, * * *." Code, § 3-505. This is a codification of the Acts of 1889, p. 73 and 1935, pp. 94, 95.

The argument is made that the Code, § 105-1307, specifically providing that the "mother or father shall be entitled to recover the full value of the life of such child" should be restricted to a mother or father and not extended to an administrator. Under the statute the right of action accrued to the mother who was in life when the child died, and the same statute fixes the measure of damages as "the full value of the life of such child." The measure of damages, therefore, is not dependent upon the expectancy of the mother. The amount that may be recovered in an action of this kind, as well as the person who may sue, is determined by the statute as of the date of the death of the child, and if the action survives to an administrator it would seem to do so for all purposes. Other arguments are made as to the legislative intent in enacting the statute under which the suit was brought, but all contentions made by the defendants seem to us to be answered by the statutes quoted respecting the survival of actions. The first of these statutes applies to actions generally and makes no exception so as to exclude a case of this character, and the second statute seems to apply specifically to an action of this kind. We therefore conclude that it was proper for the court to allow the motion making the administrator a party plaintiff to the ac tion. For cases construing one or more of these statutes see Sewell, Adm'r, v. Atkinson, 14 Ga. App. 386, 80 S.E. 862; Fra-zier v. Georgia Railroad and Banking Co, 101 Ga. 77, 28 S.E. 662; and Stephens Adm'r v. Columbus Railroad Co, 134 Ga. 818, 68 S.E. 551.

2. "Except in cases of railway employes injured by the negligence of fellow servants and suing under our statutes governing that subject, contributory negligence is an affirmative defense, and it is generally not necessary for the plaintiff to negative its existence in his petition." Great Cosmopolitan...