O'Shields v. Georgia Pac. Ry. Co.

• Decision Date: 11 November 1889
• Parties: O'SHIELDS v. GEORGIA PAC. RY. Co.
• Court: Georgia Supreme Court

10 S.E. 268

83 Ga. 621

O'SHIELDS v. GEORGIA PAC. RY. Co.

Supreme Court of Georgia

November 11, 1889

Syllabus by the Court.

1. After a declaration has been amended, a motion to dismiss the action raises no question as to the right to amend, but only touching the sufficiency of the declaration as amended.

2. The amendments made a good declaration under the statute of Alabama.

3. Where a right of action for a tort is given by a statute of another state, and no period of limitation is prescribed otherwise than by the general law of limitation prevailing in that state, the lex fori, not the lex loci applies on the subject of limitation.

Error from superior court, Fulton county; M. J. CLARKE, Judge.

Cox & Reid, for plaintiff in error.

Jackson & Jackson, for defendant in error.

BLECKLEY C.J.

The plaintiff was an employe of the defendant as a car-coupler. While on duty in the state of Alabama, he received a personal injury, in consequence partly of the negligence of the engineer and conductor, his co-employes, and partly in consequence of the defective condition of a certain part of one of the cars, called a "draw-head." As the original declaration stood, it would seem that the defective draw-head was referred to, not as an independent cause of action, but as a circumstance relied upon to charge the engineer and conductor with a higher degree of diligence on their part than would otherwise have been requisite. The suit was commenced on February 14, 1888, returnable to the following March term of the superior court. During the corresponding term of 1889 two amendments to the declaration were filed, and service of the same was acknowledged by defendant's attorneys. At the September term, 1889, the case was called for trial, when the defendant moved orally to dismiss the same upon the ground that the declaration set forth no cause of action at common law, and because the right of action under the Alabama statute was barred by limitation therein as to time. The court sustained the motion, and dismissed the action; and the plaintiff excepted.

1. The motion to dismiss was equivalent to a general demurrer, and as the declaration had been amended and the amendments served at the preceding term, the demurrer was aimed not alone at the declaration as it stood originally, but as it became by the addition of the two amendments. In the argument here it was contended that inasmuch as the amendments, if objected to, ought to have been stricken or disallowed, the fact that they were made should count for nothing; but we think otherwise. Had the defendant desired to raise the question whether such amendments could be ingrafted on such a declaration, a motion should have been made to strike the amendments, or take them off the files. By not making that motion the defendant acquiesced in the amendments, and such acquiescence at the time the case came up for trial was equivalent to consenting to the amendments as a part of the pleadings duly before the court. The judgment rendered on the motion actually made, which, as we have said, was equivalent to a general demurrer, was rendered upon the plaintiff's pleadings as a whole, and, if left unreversed, would be a binding adjudication upon the merits of the declaration as made by the amendments, and would bar any future action brought by the plaintiff as effectually as would a judgment rendered on the verdict of a jury. Kimbro v Railway Co., 56 Ga. 185. It would be quite unfair to give a defendant the benefit of a judgment on demurrer to the declaration as amended, and then allow him to uphold the judgment by insisting that the plaintiff had no right to amend. Surely, if a waiver of any objection whatever to an amendment would not result from demurring generally to all the plaintiff's pleadings, raising no question as to the right to amend, we know of nothing from which such a waiver would result.

2. Turning now to the amendments. One of these attributes the plaintiff's injury to the negligence of the defendant is not having a draw-head safe and in good repaid, alleging that the chain from the couplingpin was broken off, so that the plaintiff had to lay his hand upon the pin to do his duty whereas, if the chain had been intact, he could have pulled out the pin by means of the chain, and would not have been injured. It proceeds to allege that this, together with the negligence of the engineer and conductor, caused the injury, without any...