Wrightsville & T.R. Co. v. Vaughan

• Decision Date: 07 June 1911
• Docket Number: 3,109.
• Citation: 71 S.E. 691,9 Ga.App. 371
• Parties: WRIGHTSVILLE & T. R. CO. v. VAUGHAN.
• Court: Georgia Court of Appeals

71 S.E. 691

9 Ga.App. 371

WRIGHTSVILLE & T. R. CO. v. VAUGHAN.

No. 3,109.

Court of Appeals of Georgia

June 7, 1911

Syllabus by the Court.

Where the plaintiff in a case is a female, and the question whether she is married or single is material to her right to recover the petition should disclose the fact whether she is married or single. This is a formal defect, but it may be reached by special demurrer.

(a) The prefix "Mrs.," before the name of a party indicates that the party is a female, but leaves it doubtful whether she is married or single (using the word "single" in a sense broad enough to include a divorced person).

The office of a special demurrer to a plaintiff's petition in this state, is to compel the plaintiff to set forth his charge or ground of complaint plainly, fully, and distinctly where he has failed to do so. A petitioner cannot be required by special demurrer to set forth the evidence by which he expects to prove the allegations made in his petition; but by this means he can be compelled to give a plain, distinct, and definite statement of issuable and traversable facts, instead of general allegations of liability, or instead of vague uncertain, or ambiguous recitals. The plaintiff, to meet a special demurrer, may amend as a matter of course, or may by order of court be compelled to amend, upon pain of a dismissal for failure to do so.

Ordinarily the earnings of a married woman are not a part of her separate estate, but belong to her husband. Hence, where she has received a tortious personal injury, permanently impairing or destroying her earning capacity, her husband, and not she, has the right to sue for the loss, so far as relates to the period of their joint lives. This is the ordinary rule, but there are exceptions, as where the husband has, expressly or impliedly, consented for the wife to have her own earnings, or where the wife is living separate from her husband.

(a) Where a married woman sues for personal injuries, and claims the right to recover for earnings or for loss of earning capacity, the defendant may, by special demurrer, compel her to allege in what right she claims the privilege of recovering them, whether by reason of her husband's consent, or by reason of the fact that she was living in a state of separation.

(b) The rule above announced is not in conflict with the recognized rule that the jury, in estimating the damages which a married woman has suffered as a result of a personal injury, may take into consideration, on the question of the degree of her pain and suffering, the fact that her earning capacity has been impaired.

Primarily the husband, and not the wife, is responsible for necessaries, such as medicine and medical treatment furnished to the wife where she has sustained a personal injury; and if the married woman seeks to hold the wrongdoer through whose act the personal injury was inflicted responsible for such expenses, so incurred as a result of the personal injury, she should allege the facts essential to show an exception to this general rule, and by special demurrer may be compelled to do so.

Where a special demurrer is well taken, and the court overrules it, the error is prima facie harmful, but not necessarily so. If the reviewing court can with reasonable certainty say that no harm or injury has resulted to the complaining party, a new trial will not be granted, notwithstanding an error of this nature may appear in the record; but in the present case this court cannot say that the error in overruling the special demurrers was harmless.

Where a woman suffers a tortious personal injury, impairing or destroying her earning capacity, the cause of action arising therefrom becomes a "chose in action," within the meaning of Civil Code 1910, § 2993, and a part of her separate estate, notwithstanding her subsequent marriage, though the damages which under the law she would have been entitled to recover as a result of the tort may include compensation for loss of earning capacity, which the after-acquired husband would have been entitled to enjoy if it had not been previously destroyed by the tort. Hence in such a case it affords no defense to the action, based upon the loss of earning capacity, to show that she married between the date of the injury and the date of the trial.

Error from City Court of Sandersville; K. J. Hawkins, Judge.

Action by W. M. Vaughan against the Wrightsville & Tennille Railroad Company. From a judgment for plaintiff, defendant brings error. Reversed, with direction.

Daley & Daley and Evans & Evans, for plaintiff in error.

Minter Wimberly, Jesse Harris, and Hardwick & Wright, for defendant in error.

POWELL J.

Mrs. Vaughan sued the railroad company because of personal injuries received by her when a passenger on one of the company's trains, and recovered a verdict of $9,000. The defendant has excepted concerning a number of grounds of error; but there are many of them as to which it will not be necessary to rule, on account of the nature of the decision which is about to be rendered in the case. The petition is brought in the name of "Mrs. Willie Mae Vaughan"; but it is nowhere stated in the petition whether the plaintiff was a married woman, a widow, or a divorced person. Among other elements of damages, she prayed to recover for loss of salary and loss of earning capacity; it being alleged in this respect that she was employed as a traveling salesman, and as such she was earning $100 per month. She also asks for damages on account of hospital expenses, doctor's bill, and medicine, of about $1,000 in amount. In addition to this she sought damages for certain physical injuries which were inflicted upon her, and for pain and suffering.

At the appearance term the defendant filed demurrers to the petition, on the following grounds:

"Because said petition is filed in the name of Mrs. Willie Mae Vaughan, which implies that she is a married woman, but there is no distinct allegation in said petition showing whether petitioner is a single or married woman; therefore the petition is too vague and uncertain, for this reason."

"Because in the seventeenth paragraph of plaintiff's petition she alleges that at the time of said accident she was employed as a traveling saleswoman and was earning $100 per month in such capacity, but she does not allege whether she was thus engaged with the consent of her husband, or in her own right, nor does she allege any reason why she was dependent upon her earnings for her support."

"Because in the fourteenth paragraph of said petition certain expenditures are set forth for doctor's bill, hospital expenses, medicine, and loss of salary, without such allegations as would show petitioner's right to recover for such items and expenses incurred."

"Because, under the allegations contained in said petition, plaintiff is a married woman, and as such has no right to recover for loss of time and services and for medical bill and hospital expenses, as set forth in said petition."

The court overruled the demurrers, and exceptions pendente lite were preserved.

At the trial it appeared, from the plaintiff's testimony, that at the time of her injury the plaintiff was a married woman, and that she was living separate from her husband, whose name was Smith, and that with his consent she was receiving and keeping her earnings to her own use and benefit. A divorce suit was pending between her and Mr. Smith at the time of the injury. Between the date of the injury and the date of the filing of the suit the final verdict in the divorce suit was granted, and she was married to Mr. Vaughan, with whom she was living at the time of the trial. The marital status of the plaintiff is involved in a number of different ways in the course of the decision of the points raised in the case. Some of the points arise on consideration of the demurrers just mentioned, but in the motion for a new trial the point is also made that, inasmuch as she had remarried before the bringing of the suit, her second husband, and not she, would be entitled to recover for the loss of her earning capacity which the injury inflicted on her, unless, indeed, this right was in her first husband.

1. We have come to the opinion that the court erred in overruling the special demurrer by which the defendant sought to compel the plaintiff to state whether she was a single or a married woman at the time of her injury, especially in the light of the fact that the court also overruled a special demurrer which pointed out that she had not alleged whether she was engaged in business and receiving earnings of $100 a month with the consent of her husband, or in her own right, and overruled a special demurrer to the paragraph in which she alleged damages on account of doctor's bills, hospital expenses, and medicine, without further allegations to show by what right she sought to recover for these items of expense. The extent to which a woman may be damaged by personal injury usually depends upon whether she is married or single (using the word "single" in a sense broad enough to include a divorced person). The prefix "Mrs.," appearing in connection with the plaintiff's name, is ambiguous. Cf. Ballard v. St. Albans Co., 52 Vt. 325. This was an ambiguity which the plaintiff should have relieved in response to the special demurrer. However, in the light of the fact that she became Mrs. Vaughan after the cause of action arose, and in the light of what we are going to hold herein as to the materiality, or rather lack of materiality, of her marriage to Mr. Vaughan, we would not reverse the judgment for this delinquency alone.

The most serious objection to the petition was that pointed out by the other special demurrers to which we have...