119 Ga. 667 | Ga. | 1904
This was an action for damages on account of a homicide which occurred in the State of Tennessee. The plaintiff, who was the widow of the deceased, brings the suit as administratrix of his estate. The defendant is a railway corporation of this State. The defendant filed various special demurrers to different parts of the petition. The demurrers were overruled, and it excepted.
Section 3134. ■ "Where a person’s death is caused by the wrongful act, fault, or omission of another, and suit is brought for damages, the party suing shall, if entitled to damages, have the right to recover for the mental and physical suffering, loss of time, and necessary .expenses, resulting to the deceased from the personal injuries, and also the damages resulting to the parties, for whose use and benefit the right of action survives from the death consequent upon the injuries received.”
The petition alleged that the plaintiff was the widow of Clyde Smith, as well as administratrix of his estate, and that she had by her deceased husband two minor children, whpse names and ages were stated, and tvho were alleged to be the next of kin of the deceased. One ground of the demurrer complains that there was a misjoinder of parties, in that the children were in effect joined as parties plaintiff with the administratrix; and the demurrer further raised the question that the allegations which set forth the names and ages of the children and the fact that they were the next of kin were irrelevant and should be stricken as surplusage. We do not think that under the allegations of the petition the children were joined as parties, but we are of opinion that all reference to the children was irrelevant and should have been eliminated from the petition. IJnder the Tennessee statute the right of action for a homicide is in the personal representative, provided there is a widow, or children, or next of kin. If there is no one answering to any of these descriptions, there is no cause of action. It is therefore necessary that there should be an allegation that the deceased left a widow, or children, or next of kin, to make the cause of action complete. And when the petition alleges that there is a widow, the cause of action is complete, and it is immaterial whether the deceased had children or other next of kin. Consequently any allegation in reference to such children or next of kin should be stricken as surplusage. The fact that there is a widow
Judgment affirmed, with direction.