Tift v. Towns

• Decision Date: 30 September 1879
• Citation: 63 Ga. 237
• Parties: Tift. v. Towns, executrix.
• Court: Georgia Supreme Court

63 Ga. 237

Tift. v. Towns, executrix.

Supreme Court of the State of Georgia

(September Term, 1879.)

[Warner, Chief Justice, being engaged in presiding over the senate organized as a court of impeachment, did not sit in this case.]

*Statute of limitations. Damages. Counsel fees. Jury. Practice in the Superior Court. Verdict. Before Judge Crisp. Dougherty Superior Court. April Term, 1879.

Josephine Towns brought case against Nelson Tift for damages alleged to have been sustained by reason of a wagon, team, etc, being precipitated into the Flint river whilst crossing a toll-bridge, the property of the defendant, a portion of the same having fallen down through the negligence of defendant in failing to keep it in proper repair. The damage was alleged to have been done in December, 1870, and the suit was filed on May 16, 1871. The defendant pleaded the general issue, and that plaintiff was not damaged by any act of carelessness of defendant.

After evidence was introduced which defendant claimed showed that the property alleged to have been damaged did not belong to the plaintiff but to the estate of J. R. Towns, deceased, the declaration was amended by adding after the plaintiff's name, "as executrix of the last will and testament of John R. Towns, deceased." This amendment was made on April 15, 1879. The defendant then pleaded the statute of limitations. The jury returned the following verdict:

"We, the jury, find for the plaintiff $942.39 for damages and cost of court and counsel fees." The court ordered all of the verdict after the amount found stricken out, and this without the consent of the jury. The defendant moved for a new trial upon the following grounds:

1. Because the damages found are excessive, and especially so in that plaintiff's counsel fees were included, there being no evidence that she was entitled to the same because defendant had acted in bad faith, or had been stubbornly litigious, or had caused the plaintiff unnecessary trouble and expense.

2. Because the court erred in allowing plaintiff to amend her declaration by changing it into a suit in her representative capacity.

3. Because the court erred in refusing to charge the jury *in the words and language requested by defendant\'s counsel in writing: "That if the testimony shows that the property alleged to have been injured is not the property of the plaintiff, Josephine Towns, but is a part of the estate of J. R. Towns, deceased, bequeathed for the payment of his said J. R. Towns\' debts, and after the payment of his debts, then the residue to said Josephine Towns, and her daughter Jenny Liew; that said estate was in the course of administration at the commencement of plaintiff\'s suit, and that the debts of said estate had not been paid, or are still unpaid; that no division of the estate has been had between the legatees under said will, and no assent given to the legacies therein contained, then the plaintiff is not entitled to recover in this suit, and their verdict should be in favor of the defendant."

4. Because the court erred in charging the jury that the above amendment allowed to plaintiff's declaration, had relation to the filing of plaintiff's original suit, and in refusing to charge in the language of defendant's request:

"That the suit at the instance of plaintiff as executrix of J. R. Towns commenced at the filing of the amendment in her right, as such executrix, to-wit: on this day (15 April, 1879), and if more than four years had elapsed from the wrongs and injuries complained of, to the filing of said amendment, then the defendant was protected under the plea of the statute of limitations, and they should find in his favor."

5. Because the court erred in allowing plaintiff's counsel (defendant's counsel objecting thereto) to furnish one of the jury with paper and pencil, and in allowing him to take down and carry out with the jury items of damage, which he the said counsel alleged to be proven in the case, and which he read to the jury from a paper which he had in his hands.

6. Because the court erred in directing the foreman of the jury to strike from the verdict as returned into court the words, "including counsel fees, " and in not having said words recordedas a part of said verdict.

*7. Because the court erred in allowing David A. Vason to testify as to the value of counsel fees in the case. and in overruling defendant's objection thereto, that there was no evidence in the case relating to defendant's conduct in the said litigation which would warrant or justify such evidence.

8. Because the court erred in admitting in evidence testimony going to show the hire of the wagon and team, and the cost of a hand to attend to them while they were disabled from work on account of the alleged injuries they had received from fallingthrough bridge, and in overruling defendant\'s objection thereto, viz: that said items were not proper items of damage. The motion was overruled, and defendant excepted.

S. Hall; D. H. Pope, for plaintiff in error.

D. P. Hill, for defendant.

Bleckley, Justice.

1. The Code, in section 3333, makes the time of filing the declaration the time of commencement of suit. In section 3487, it declares that "in an action by or against an individual the pleadings may be amended by inserting his representative character." Here, the plaintiff below sued apparently as an individual, and pending the action, the declaration was amended so as to show that she sued, in fact, as the executrix of her husband. The right person was in court from the beginning, but she was there in the wrong capacity. Formerly, perhaps, such an error in pleading was not...