It is urged that the lengthy complaint (nineteen *245 рaragraphs and numerous subparagraphs on twelve pages of foolscap) wholly fails to comply with the provisions of Code Ann. § 81A-108 (a). It must be conceded that the complaint is not a "short and plain statement of the claim,” particularly when we consider the form prescribed in § 81A-309 in connection with § 81A-108 (a). The trial judge might well have stricken the complaint, granting leave to replead in accordance with these provisions of the Civil Practice Act, but he did not. 1
Looking to the merits of the motion, it is observed that while nо malpractice by the doctor is alleged as to the treatment actually afforded plaintiff’s husband, and negligence does not appear from the mere fact that there was a failure to effect a recovery by the husband, for the doctor is not an insurer or a warrantor that his professional skill and efforts will effect a cure,
(Lake v. Baccus,
The doctor’s relationship to the hospital is that of an independent contractor, and he is not to be held for the negligence, if any, of the hospital.
Black v. Fischer,
There was no concert of action. The actions of the doctor and of the hospital were mutually independent. They were not joint tortfeasors. Separate verdicts will be required.
Schneider v. City Council of Augusta,
The standard of care required of a hospital is clearly stated in
Emory University v. Shadburn,
In any event, and without any consideration of the numerous conclusions of the pleader or of allegations which could not be supported by admissible evidence, we conclude, construing the appropriate allegations in favor of the pleader, as we must do, that it cannot be said that beyond doubt the plaintiff cannot, within the framework of her complaint, demonstrate by competent
*247
evidence that she has a claim upon which relief can be granted. Denial of the motions to dismiss was proper.
Harper v. DeFreitas,
There was no error in sustaining the motion to strike the reference to plaintiff’s children made in paragraph 1 of the complaint.
Wilson v. Central of Ga. R. Co.,
In an effort to obtain clarification and a definitive ruling on the measure of damages we certified certain questions to the Supreme Court.
Bulloch County Hospital Authority v. Fowler,
Where a widow sues for the wrongful death of her husband the measure of damages is the "full value of his life,” and while a jury may, depending upon the facts of the case, determine that the full value of his life is the gross sum that he would have earned to the end of his life, had he lived, reduced to its present cash value, "[t]he jury is not bound to find that lifetime earnings reduced to present value is the 'full value of the life of the decedent’ but such is an aid only to the jury in making such determination.
Standard Oil Co. v. Reagan,
The first sentence of paragraph 14, to wit: "Plaintiff shows that her busband was a good provider and very well cared for and supported her and said children,” was properly stricken. See
Central R.
v.
Rouse,
The trial court erred in refusing to strike paragraph 18 of the petition which reads as follows: "Plaintiff shows that without him, life is frustrated and utterly confused. There is no one to whom she can turn to solve the many problems with which she is now confronted or with whom she can adequately share the awesome responsibilities of rearing the children which she must now assume without the sustaining force of her deceased husband. That these losses are immeasurable save by an enlightened conscience.”
"There is almost entire harmony in denying a recovery for the mental suffering of the beneficiaries of the deceased, or as a solatium.” 5 Sutherland on Damages (4th) § 1263, p. 4861. "[T]he construction . . . almost universally followed . . . is . . . that the jury are confined to the pecuniary loss, and that nothing can be allowed by way of solatium for the grief and wounded feelings of the beneficiaries, or to compensate them for the mere loss of society or of companionship which they have suffered.” Tiffany, Deаth by Wrongful Act, § 154, p. 324. See also
Engle v. Finch,
165
*249
Ga. 131, 134 (
Plaintiff served on each defendant some 34 interrogatories, many having subparts. A considerable number of them called for opinions of the defendants inter alia, as to what would constitute a proper degree of care in given instances.' Objections were made to substantially all of the interrogatories, some of which were sustained and others overruled. We have carefully considered each ruling and find no error.
Hopkins v. Allen,
Judgment reversed in the main appeals as to the rulings on motions to strike paragraph 18 of the complaint; otherwise affirmed; *250 affirmed on the cross appeals.
Appendix.
Surrency v. Southern Railway Company
Civil Action No. 605.
U. S. District Court for Middle District of Georgia.
Bootle, District Judge. This is a tort action to recover damages for injuries allegedly sustained by plaintiff as the result of alleged negligence on the part of the defendant in a grade crossing collision betweеn a pick-up truck and a train. The original complaint consisted of 12 pages, 30 paragraphs, three of which have a total of 30 subparagraphs, and the complaint as a whole is said to contain 2,233 words. The defendant promptly filed a motion to strike the complaint and to strike certain allegations thereof upon the ground that the complaint does not set forth a claim in a;.'short and plain statement as is required by Rule 8, Fed. R. Civ. P. and violates said rule in setting forth a lengthy and involved statement of evidentiary matters, background information and needless facts with great prolixity and detail, and upon the additional ground that said complaint is argumentative in form and would be prejudicial to defendant in the hands of a jury. Said motion was supported by a brief pointing out the virtues of Rules 8 (a), 8 (e) (1) and 12 (f) which respectively provide:
"A pleading which sets forth a claim for relief, . . . shall contain (1) a short and plain statement of the ground upon which the court’s jurisdiction depends, ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to which he deems himself entitled ... (8 (a)). Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required. (8 (e) (1)). . . . [T]he court may order stricken from any pleading any . . . redundant, immaterial, impertinent, or scandalous matter. (12 (f)).”
Counsel for plaintiff to some extent has acquiesced in defendant’s motion in that plaintiff’s counsel has now offered a proposed amended complaint consisting of 12 numerical paragraphs, 4 *251 pages, paragraph 9 consisting of 10 subparagraphs, (a) through (j), each of said subparagraphs being a specification of negligence.
Counsel for defendant has filed objections to the allowance of said proposed amendment on the grounds (1) that it does not yet meet the requirements of Rule 8 which requires a short, plain, concise statement of the claim sued upon, (2) the proposed amendment alleges evidentiary matters, particularly so in pаragraphs 5, 6, 7, and 8, and (3) that paragraph 9 instead of being a short, plain, concise allegation of negligence is a lengthy, verbose, impertinent and redundant statement argumentative and prejudicial in character.
Georgia lawyers, accustomed as they are to the system of fact pleading prevalent in the State courts, where, for instance, specification of grounds of negligence must be alleged, have been somewhat slow to grasp the full significance of the Federal Rules of Civil Procedure above quoted, and hesitant to seize the advantages of this new notice-form of pleading. Where circumstances constituting fraud or mistake are not involved averments may be made in general terms and negligence may be pleaded generally without a specification of particulars. "Conclusions of fact are all that are necessary and the inclusion of evidentiary matter is not only superfluous, but is actually frowned upon.” Holtzoff, A Judge Looks at the Rules, Fed. R. Civ. P., at page 1 (West Publishing Company, 1965 еdition).
It is not only unnecessary but it is objectionable to plead evidence. Rule 8 (a) "forbids the prolix recitation of probable evidence.” Millet v. Godchaux Sugars, 241 F2d 264, 266 (5th Cir. 1957). It is equally clear that general allegations of negligence are sufficient and that specific allegations are not required. Augusta Broadcasting Co. v. United States, 170 F2d 199 (5th Cir. 1948); The Great Atlantic & Pacific Tea Co. v. Jones, 294 F2d 495 (5th Cir. 1961); 4 Cyclopedia of Federal Procedure, § 14.251, page 311, 3d edition. In Hardin v. Interstate Motor Freight System, 26 FSupp. 97 (S.D. Ohio 1939) allegations in the nature of specifications of negligence in addition to a general allegation of negligence were stricken on motion.
While it seems to be within the discretion of the trial judge in the federal courts whether the pleadings may be taken to the *252 jury room with the jury and that there is no legal requirement that the pleadings be sent out with the jury, see 9 Cyclopedia of Federal Procedure, § 31.107, page 427, 3d edition; Chicago & E. R. Co. v. Ohio City Lumber Co., 241 F 751, 756 (6th Cir. 1914); Toledo Traction Co. v. Cameron, 137 F 48, 67 (6th Cir. 1905), the practice of sending the complaint, any amendments thereto, and all responsive pleadings out with the jury has generally been followed in this district; hence, the propriety of adhering to the rule that the pleadings should not contain a prolix recital of probable evidence. In the event of a variance between allegata and probata prejudice may easily result. The propriety of not permitting specifications of particulars of negligence in the complaint is equally obvious, particularly so where such specifications tend to be repetitious, verbose, prolix, and proliferated. Here too, there may be a variance between what is alleged and what is proved. But even in the absence of a variance such a pleading tends to be argumentative in form and unless counterbalanced by a similar pleading on the other side is capable of leading to prejudice in the jury’s final deliberations. No encouragement should be given to defense counsel to draft such counterbalancing pleadings.
This is not to say that there is not a time and place for the plaintiff to set out in detail all of his contentions, but this time and place is in the pre-trial order. This court’s pre-trial notice requires that the pre-trial order set out both the plaintiff’s and defendant’s contentions and this requirement is interpreted to include all acts of negligence charged against the defendant, together with all statutes, ordinances, rules, or regulations allegedly violated. In such order the plaintiff may set out as fully as he desires a preview of his evidence, but even there verbosity and prolixity should be avoided.
Construing paragraphs 5, 6, 7, and 8 of the proposed amendment as allegations of evidentiary matters and paragraph 9 as needlessly and objectionably setting out specifications of particulars of negligence, this court disallows the proffered amendment, but will allow said amendment to be filed if it is redrawn so as to eliminate said numbered paragraphs 5, 6, 7, 8 and 9. If said amendment is so redrawn and filed the defendant shall be allowed ten days after the filing оf the same within which to answer it.
*253 Eberhardt, Judge, dissenting in part. We cannot agree with all that is said as to what may constitute the "full value of the life” of a husband and father 1 in a wrongful death action, as delineated in Division 3 (a) of the opinion. Our disagreement is based upon the holdings to be found in decisions of the Supreme Court and in older decisions of this court, none of which has been overruled and by which we are bound.
On this question we find the "full value” of the decendent’s life to be measured in terms of what he was earning, or what he was capable of еarning, reduced to its present value.
"The present action is not one for the loss or injury to a property right in the life of the decedent, but is one compensatory to the plaintiff for the loss of his services had he lived,
measured in terms of money according to his average yearly earnings
for the duration of his expectancy, reduced to a present value.” (Emphasis supplied).
Atlanta, B. & C. R. Co. v. Thomas,
"The term 'full value of the life of the deceased,’ is construed to mean the gross sum that the deceased would have eаrned to the end of his life, had he not been killed, reduced to its present cash value . . .
Central of Georgia R. Co. v. Minor,
We also disagree with the holding that the conclusory allegations in plaintiff’s petition that she "is in no wise limited to the money that he could have and would have earned” and "that an even greater value must be couched in terms of leadership, guidance and judgment concerning the health, welfare and society of his family. That he was always helpful in the many household duties and home responsibilities and the family depended entirely upon his wisdom and guidance in major decisions affecting family life,” were proper matters to be pleaded or for consideration by the jury.
First, even as to the financial support of the family "Proof that the decedent was the sole support of the widow and her children is irrelevant, and the allowance of such evidence is harmful error.”
Central of Ga. R. Co.
v.
Prior,
And secondly, the items of leadership, guidance, help in the performance of household affairs and duties, are items of consortium. These are improperly pleaded and evidence relating thereto should be repelled because "the right of consortium exists only
during the joint lives
of the husband and wife.” (Emphasis supplied).
Walden v. Coleman,
The defendants’ motions to strike both paragraphs 17 and 18 of the petition should have been sustained. Some of the matters alleged would authorize a recovery for items of consortium, others for solatium. The allegations are argumentative, and even before adoption of the Civil Practice Act they were improper for that reason.
Elliott v. Ga. Power Co.,
I am authorized to state that Presiding Judges Jordan and Hall and Judge Whitman concur in this dissent.
Evans, Judge, dissenting in part. I cannot agree to all that is said in the opinion, nor to the judgments reached by the majority as to several issues. Hence, I must dissent and give my reasons for so doing.
1. I dissent from Headnote 2 and from the corresponding division of the opinion. The trial judge sustained defendant’s motion to strike the reference made in paragraph 1 of the complaint to the children of the plaintiff widow and her deceased husband, and the majority opinion affirms. I would reverse the court as to this ruling. The Supreme Court of Georgia has plainly held that a plaintiff may introduce
evidence
as to the
names and ages
of minor children in a wrongful death action brought by a widow. See Western
& A. R. v. Gray,
2. I do concur emphatically in the majority opinion as to Headnote 3a and the corresponding division of the opinion, which I consider to be absolutely correct.
3. I dissent in part from the majority opinion as to Headnotes 3b and 3c and the corresponding subdivisions of the opinion. In my judgment the first sentence of paragraph 14 was improperly stricken, wherein plaintiff alleged: "Plaintiff shows that her husband was a good provider and very well cared for and supported her and said children.” Likewise, in my opinion, paragraphs 17 and 18 were improperly stricken, except as to the first and last sentences of paragraph 18, which were as follows: "Plaintiff shows that without him, life is frustrating and utterly confused . . . That these losses are immeasurable except by an enlightened conscience.” The remainder of paragraрhs 17 and 18 relate to her husband’s age, his good health, his working qualities and money earned, and leadership, guidance and judgment concerning the health, welfare and society of his family; the solution of family problems and of rearing a family, and should not have been stricken from her complaint.
Surely it is unnecessary to cite authority on the right of a widow to allege her husband’s age, health, working ability and earnings. And as to his leadership, guidance and judgment concerning the welfare and society of his family, and solution of family problems, the Supreme Court of Georgia has clearly spoken in favor of these subjects in the following authorities.
Peeler v. Central of Ga. R. Co.,
The above leaves it beyond peradventure and clearly shows that the jury is entitled to consider other elements than earning capacity, in arriving at the full value of the father’s life.
While it is true that the
Peeler
case, supra, was not by a full bench, this is completely remedied at a later date in the case of
Vickers v. Vickers,
For each of the above reasons, I must dissent from the judgments reached by the majority since I would affirm the judgments in the main appeals and reverse as to the cross appeals.
Notes
See Surrency v. Southern Railway Company, No. 605, U. S. Dist. Ct., M. D. Ga., an unpublished opinion of Chief Judge W. A. Bootle, in Appendix to this opinion.
While there was no written motion for the production of documents before the court, as cоntemplated by Code Ann. § 81A-134 (a), a purpose of which is to designate with particularity what is desired for production, the purpose appears to have been accomplished in this instance, when all parties were before the court. In any event, the complaint which appellants make is not as to a lack of specificity in designation which renders it burdensome or difficult for them to comply with the order. A written motion is certainly the proper method for use in seeking production of documents, but we find no hаrm resulting from a lack of it here.
A different approach has been used in arriving at the full value of the life of a wife and mother.
Metropolitan Street R. Co. v. Johnson,
"It is error to admit prospects of advancement to a position of which the person in question has no definite assurance.”
Central of Ga. R. Co. v. Minor,