Stephens v. Columbus R. Co.
| Citation | 68 S.E. 551,134 Ga. 818 |
| Parties | STEPHENS v. COLUMBUS R. CO. |
| Decision Date | 14 July 1910 |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
Where a married woman died after having instituted her suit to recover damages for pain and suffering resulting from persoanal injuries, and one duly appointed as administrator of her estate was made a party to the case, and the cause was ordered to proceed in his name as plaintiff, the case should not have been non-suited on the trial, where the evidence made a prima facie case against the defendant, on the ground that the administrator was not a proper party to the case and that upon the death of the original plaintiff there was a "right of survivorship" in the husband.
Error from Superior Court, Muscogee County; S. P. Gilbert, Judge.
Action by Marietta Martin against the Columbus Railroad Company. On the death of plaintiff, L. L. Stephens was substituted. Judgment for defendant, and plaintiff brings error. Reversed.
T. T Miller, for plaintiff in error.
Frank U. Garrard, W. C. Neill, and A. W. Cozart, for defendant in error.
BECK J. (after stating the facts as above).
Conceding that the evidence in the case established beyond controversy the fact that the intestate of the plaintiff in error had a husband in life at the time she sustained the injuries complained of, and at the time of her death, we think that the court should have overruled the motion for a nonsuit. The court below evidently granted the nonsuit upon the idea that the right of action survived to the husband, and not to the administrator of the original plaintiff, who died after the institution of her action to recover for personal injuries to herself. That the action itself did not abate is perfectly clear from the reading of section 3825 of the Civil Code of 1895, which provides: "No action for a tort shall abate by the death of either party where the wrongdoer received any benefit from the tort complained of; 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, and in case of the death of the defendant shall survive agianst said defendant's personal representative." This action was brought to recover for pain and suffering, mental and physical,...
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