Sewell v. Atkinson

• Decision Date: 04 February 1914
• Docket Number: (Nos. 5233, 5259.)
• Citation: 80 S.E. 862,14 Ga.App. 386
• Parties: SEWELL v. ATKINSON et al. ATKINSON et al. v. SEWELL.
• Court: Georgia Court of Appeals

80 S.E. 862

14 Ga.App. 386

SEWELL

v.ATKINSON et al.

ATKINSON et al.

v.SEWELL.

(Nos. 5233, 5259.)

Court of Appeals of Georgia.

Feb. 4, 1914.

(Syllabus by the Court.)

1. Abatement and Revival (§ 54*)—Death of Plaintiff—Action for Personal Injuries.

At common law a cause of action for a personal tort abated with the death of the person in whom the right of action was vested. It was the evident purpose of the General Assembly, in varying the rule of the common law, to prevent the abatement of actions for personal injuries which might be pending at the time of the death of either party, and it is expressly declared that "the cause of action" shall survive, in case of the death of a plaintiff in an action pending, to the personal representative of the deceased plaintiff, in case there is no right of survivorship in any other person. This rule, in derogation of the common law, must of course be strictly construed, but the intention of the Legislature must nevertheless be given effect, and it must be presumed that the use, by the General Assembly, of the term "cause of action, " in the exception as to pending actions, was not unintentional or ill-advised.

[Ed. Note.—For other cases, see Abatement and Revival, Cent. Dig. §§ 255-258, 261-270; Dec. Dig. § 54.*]

2. Appeal and Error (§ 979*)—Review—Refusal of New Trial.

There was no material error in the trial, and, though the verdict in favor of the plaintiff was small, there was no evidence that the amount returned was influenced by either prejudice or bias, and, since the finding of the juryhas the approval of the trial judge, the judgment refusing a new trial will not be reversed.

[Ed. Note.—For other cases, see Appeal and Error. Cent. Dig. §§ 3871-3873, 3877; Dec. Dig. § 979.*]

Pottle, J., dissenting.

Error from City Court of Greenville; H. H. Revill, Judge.

Action by J. M. Sewell, administrator, against H. M. Atkinson and others. From judgment, both parties bring error. Affirmed on both bills of exception.

M. F. Culpepper, of Greenville, for plaintiff in error.

Rosser & Brandon, of Atlanta, Hat-ton Lovejoy, of La Grange, and McLaughlin & Jones, of Greenville, for defendants in error.

RUSSELL, C. J. Judgment affirmed on both bills of exceptions.

POTTLE, J. (dissenting). At common law a cause of action for a personal tort abated with the death of the person in whom the right of action was vested. The rule of the common law is of force in this state, except where modified by statute. Section 4421 of the Civil Code was intended...