Clark v. Southern Railway Co.

20 Ga. App. 274 | Ga. Ct. App. | 1917

Bloodworth, J.

Mrs. Maggie Clark brought suit against the Southern Railway Company for $2,000 damages, alleging that she was the mother and sole surviving, parent of Henry Grady Clark, a minor. The allegations in the petition are very general, and no direct and specific act of negligence is charged, but the petitioner seeks to plead that the question of negligence as to this ease is settled by reason of a former action instituted by the said Henry Grady Clark by and through the petitioner as his next friend, in which there was a recovery by the plaintiff.

The court did not err in sustaining the demurrers and dismissing the suit. The allegations in the several paragraphs of the petition were general and uncertain, and lacking in the definiteness necessary to good pleading. There is no direct and specific allegation of negligence, and even if it were permissible to plead in this case the verdict and judgment in the suit of Mrs- Maggie Clark, as next friend of Henry Grady Clark, against the Southern Railway Company, as an estoppel on the question of negligence, the petition must be definite and certain, complete within itself, and leave . nothing to conjecture. In the petition in this case there are some general references to the former case, but no part of the petition in that case is attached to the present petition; a copy of the verdict and judgment only is attached. However, we think the principle involved in this case is settled by the case of Hooper v. Southern Ry. Co., 112 Ga. 96 (37 S. E. 165). The first headnote of that decision is as follows: “A suit against a railway company for personal injuries to a minor, brought in his behalf by his father as next friend, is not, either as to cause of action or as to parties, actually or substantially the same as a suit by the father in his own right against such company-for loss of the minor’s services, occasioned by those injuries.”

Counsel for the plaintiff in error say that “The petition in this case is drawn with the express purpose of aligning it with the case of Anderson v. R. Co., 9 Daly (N. Y.), 487, and every allegation which, in the Hooper case, the court said distinguished that case from the New York -ease just cited has been carefully eliminated from the instant ease; and counsel for plaintiff in error respectfully submit that the case before the court now is on all-fours with the New York case reported in 9 Daly.” The New York case, supra, which was discussed in the Hooper case, supra, was decided by three judges, no authority was cited to sustain it, its soundness has been questioned by text-writers, and in the ease of Maisky v. Schumacher, 27 N. Y. Supp. 331, decided by a full bench, it was practically overruled. In the latter ease the decision said: “The complaint in this action sets out the recovery of judgment in an action by plaintiff’s father for loss of service by reason of the accident here complained of, which was not denied by the answer. Upon the trial he offered the judgment roll in the father’s action ‘as an estoppel by record.’ The court excluded it and the plaintiff excepted. He then offered the roll ‘as some evidence of the fact that the injury was caused solely by reason of the negligence of the defendant.’ The court again excluded it, and plaintiff excepted. We think both rulings were correct. The judgment in favor of the father could not be ‘some evidence of negligence’ unless it were conclusive evidence. If it were conclusive evidence, it operated by way of estoppel, and estoppel, to be effectual, must be mutual. Booth v. Powers, 56 N. Y. 33; Collins v. Hydorn, 135 N. Y. 320, 323, 325 (32 N. E. 69). The case last cited holds that a judgment against a party in his representative capacity as an assignee for the benefit of creditors does not include [conclude ?] him in an action brought in his individual capacity, although the same questions are involved in both actions; and in Rathbone v. Hooney, 58 N. Y. 467, it was held that a judgment against a party sued as an individual is not an estoppel in a subsequent action for the same cause, in which he sues, or is sued, in another capacity or character (citing many authorities). The same point substantially was decided in Landon v. Townshend, 112 N. Y. 93 (19 N. E. 425). There can be no estoppel unless there is privity of property, parties, estate, or heirship between the plaintiff and his father as to this cause of action. Bigelow, Estop. (5th ed.) 130, 131; Wells, Res. Adj. § 21; Collins v. Hydorn, supra; Neeson v. City of Troy, 29 Hun. 173; Groth v. Washburn, 39 Hun. 324. Here there was no such privity. The father sued for the loss he claimed to have sustained, while in this action the son seeks to recover for himself the damages he claims to have' sustained. Anderson v. Railroad Co., 9 Daly, 487, was decided on a motion to strike out a part of a complaint, and can be regarded as an authority on that subject only; and, in the light of the authorities above cited, it may well be doubted whether it can be regarded as controlling, even on the question then under consideration.” See also: Guy v. Lumber Co., 93 Tenn. 213 (23 S. W. 972); Bartlett v. Rochel, 88 Ind. 425.

The writ of error in the instant case was made returnable to the Supreme Court, and by that court was transferred to this. There is a request in the brief of counsel for the plaintiff in error that the decision in the Hooper cáse, supra, be reviewed, but this court, on considering the question, is not satisfied that the decision in the Hooper ease should be “modified or overruled, or that the question is one* of so much doubt that it should be referred to the Supreme Court for consideration.” This court, therefore, will not certify the question to the Supreme Court.

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.