Wright v. Smith

• Citation: 57 S.E. 684,128 Ga. 432
• Parties: WRIGHT v. SMITH.
• Decision Date: 20 May 1907
• Court: Supreme Court of Georgia

57 S.E. 684

128 Ga. 432

WRIGHT v. SMITH.

Supreme Court of Georgia

May 20, 1907

Syllabus by the Court.

"A father, or, if the father be dead, a mother, shall have a right of action against any person who sells or furnishes spirituous liquors to his or her son under age, for his own use, and without his or her permission."

In a suit brought upon a right of action of the character indicated in the preceding note, the plaintiff may recover both general and special damages.

When in a petition setting forth a right of action of the character above referred to, the petition lays damages in a stated amount, and enumerates certain items of special damage, which, in the aggregate, amount to the exact sum sued for, the recovery of the plaintiff must be limited to the special damages alleged, and there can be no recovery for general damages.

Error from Superior Court, Cherokee County; Geo. F. Gober, Judge.

Action by George Wright against R. J. Smith. Judgment for defendant and plaintiff brings error. Reversed.

J. P Brooke and Griffin & Attaway, for plaintiff in error.

E. W Coleman, for defendant in error.

COBB, P.J. (after stating the facts).

"A father, or, if the father be dead, a mother, shall have a right of action against any person who sells or furnishes spirituous liquors to his or her son under age, for his own use, and without his or her permission." Civ. Code 1895,§ 3871. The effect of this section of the Code is to declare the act to which it refers to be a tort, and to give the parent a right of action therefor. In an action for a tort of this character, as is true in cases of actions for torts generally, the plaintiff may recover both general and special damages. The plaintiff, however, is not compelled to sue for all the damages which the law entitles him to recover. He may sue for general damages alone, or he may sue for special damages only, or his petition may embrace a claim for damages of each character. The petition in the present case alleges that the act of the defendant has damaged the plaintiff in the sum of $500. The petition enumerates the items of special damage, and the amounts so stated are, in the aggregate, the exact sum sued for. It would seem that the purpose of the plaintiff was simply to ask a recovery of his special damages, and that he had waived the right to recover general damages. Even if it cannot be said that this was clear from the averments of the...