*1 road. of the proper side failing keep to on the in the middle other was Each driver contended that the the auto- proper his lane. From road and the was in witness portions damage the left front mobile it was obvious While, collision. involved in a head-on the two automobiles were statement was therefore, under the cited cases the witness’ might properly from facts to and as such conclusion testified rejected, it also a conclusion which have been was unavoid- and in- believed, if defense are presented able the facts plaintiff’s driver capable of belief if the facts testified require reversal accepted. are Its admission does case. voluntary
It is not error to receive ab the verdict Perry 479; sence of defendant’s counsel. v. Mulligan, Bullard, Jones v. 145; Ward, Ward The trial court here in his order over stated, ruling jury the motion for new trial that after the had retired to consider him their verdict the defendant’s counsel absented self without leave or notice the court. the court was When jury attempted notified that had reached a verdict he located, and, failing have counsel this, received the verdict jury disperse, publish allowed the but did not the same until procedure. after counsel had returned. There no error in this Judgment Quillian, J., Hall, J., concurs. concurs affirmed. judgment.
42198. HARRELL et al. GARDNER February Argued September 9, 1967. 12, 1966 Decided *2 Fulcher, Hagler, Harper Reed, Hagler, Gould B. Fulcher, & appellant. Evans, Jr., Ross, appellees. Ben B. Randall far as this record the So shows administra Per Curiam. defendant, petition. filed no trix, the resident demurrer appellant’s general ground “on the it demurrer was against forth a of action fails set cause this defendant.” being contends that this is true for the reason Appellant that, jurisdiction no him a nonresident, the court has over unless against of action is stated the resident defendant, cause Appellee fails to do so. contends that the that it demurrer fails question of whether a cause of action to raise the is set out against administratrix, question pre for which reason no of jurisdiction, appearing sented for decision. “The absence by general petition, on the face of a be raised demurrer allege petition fails to a cause of complaining that action Mullally (2) sought.” Mullally, for the relief Mack, Modern Homes Const. Co. SE2d appear upon the facts SE2d Where general question “the raised petition, face of the demur necesary jurisdictional, and it was not rer demur was the court specially jurisdic- set forth was without rer to tion entertain the case.” Lothridge, Ruis v. Ga. 474 merely The demurrer in that case that the was petition Young Koger, failed to set out a cause of action. In the nonresident defendant filed general alleging petition demurrer that the failed to set forth against cause action him, this court held that where demurring defendant was a nonresident, and resident defendant filed no demurrer, question raised, it would not be error for petition the trial court to dismiss the as to both defendants where as a matter of fact no cause was set out the defendant who failed demur. However, in Heath Miller, where one defendant filed a demurrer to the effect that petition set out cause of action him, it was held that the demurrer inured to his only, although benefit state facts on proceeded which the was the same as to all only defendants. This means, however, that a will not be dismissed demur, defendant who fails to *3 question liability may of the resident’s considered, not be if necessary adjudicate whether the nonresident be held in county in which he is sued. demurrer in language A one here involved was filed the nonresident defendant Studstill, (93 Richards & Associates v. Ga. 212 378 Supreme Court, reversing Ap the Court of peals, “Hence, held: as to the nonresident defendant Richards Associates, Inc., petition alleges & no cause of action which, provision under the venue of the Constitution of this State, can be maintained that defendant Superior Dodge County, and its demurrer should have been sustained.” the demurrer It follows filed in this case is jurisdictional question. sufficient to raise the Georgia the statute law of a wife can not “Under recover living of a husband with whom she is in lawful wedlock, for a resulting negligent operation tort from his of an automobile they riding at injury.” Heyman in which were the time App. Heyman, Ga. The fact that 19 634 dead at the time of the suit is husband is immaterial for the subject administrator is “just reason that the husband’s suit 174 wrongdoer during his life.
as the himself would have been 3-505; Rampley, App. 453, . . .” Code Wrinkle § 454 mother, wrongful action is whose death this
Since living bring brought, could not if she were action husband, may the children sue the father under wrongful Code Ann. death of the mother 105-1306 § allegedly negligent resulted from his when the mother’s death tort? gist of was “codified from Acts of 1850 105-1306 § p. 476; p. Acts of . .” Digest, 1855-6, 155. 1855-6—Cobb’s Co. Venable,
Atlanta P. R. & W. Neither the 55. original persons Act nor the current section names the or Code persons wrongful classes of whom this action for can be brought against. question It is silent. The therefore is one legislative intent, Assembly did i.e., what the General intend changed when it the common law and a child, authorized emancipated not, bring an whether action for the Assembly death of its mother? Did the General intend to an action a child its father for authorize or to mother, only against death of its authorize persons opinion third other than the father? We are of the it intended the latter. liberally
We are aware that some states construe statute derogation of the common law. 942-943, See CJS Georgia done; However, derogation this cannot be statutes in strictly of the common law are to be construed. See Hood v. Co., R. Watson v. Thomp- Southern 190); Mott v. son, R., Central Ga. 680. appears decision in find one to be completely We analogous. Chastain, It is Chastain *4 sought bring a mother an against There wrongful for unemancipated husband and father death an negligent growing out of a tort. child Code Ann. 105-1307 § bring an a mother to action for authorized death enacting By statute, this did the Assembly her child. General action for an to authorize of her child intend as any person? as well other third against the father In Chas- tain this court held such an action against to be the'public policy of this state for the reason that “Had the child died, of action would have arisen in its favor against its father injury. because of the Its give death did not to either parents of its as nor other, personal to its repre- sentative, of action parent alleged either negligent tort. . .”
If the General Assembly did not intend1 in Code Ann. 105-1307 authorize mother to sue the al- father § leged wrongful death of a child, it would seem to follow that Assembly consistently General did not intend Ann. in Code to authorize a child 105-1306 to sue the alleged father for the wrongful death of the mother.
The recent case in the United of Appeals, States Court (5th F2d Cir.), Union Bank &c. Co. v. First Nat. Bank Co., allowing &c. a similar action, primarily was based point parent the deceased liability covered in- (alleged surance petition). in the In Bulloch v. Bulloch, 45 Ga. App. 1, 708), court “Something stated: has been of liability said insurance, but the nothing shows as to such insurance, and presume we cannot its existence. Moreover, the fact that the defendant father may have carried liability upon' insurance his automobile irrelevant, would be since liability must exist before such appli- insurance would be cable, policy of insurance could not establish that fact.” The trial overruling court erred in the demurrer of non- resident defendant.
Judgment J., reversed. Felton, Bell, C. P. J., Frankum, J.,P. Jordan, Hall, Eberhardt, Pannell and Quillian, JJ., Deen, concur. J., dissents. dissenting Judge, as to Division If this court was
Dben, holding Judge correct in with in Farrar Farrar, Jenkins nothing policy of law inhibits an action an adult child a parent personal grounded tort on negligence, am I constrained to in majority opinion sist that the second division of the is founded premise. on a false The thrust the decision is that since a personal injury wife cannot sue her husband for during cover- *5 176 cannot
ture, parent children sue their for the of value her life after the coverture has been ended homicide. Yet the cov- only prevents suing erture from wife while in life and while minority prevents married the husband. Similarly, child suing parent from simple negligence its while unemanci- pated. disability upon ends or death, One divorce the other age reaching the of or on emancipation. Wright 21 Wright, App. (70 152). 85 Ga. 721 SE2d And there is no “fam- ily unity” doctrine in which would bar of the action unemancipated even an parent child par- where both .a ents are in fact dead. Bank Union &c. Co. First Bank Nat. &c. Co., 311, supra. F2d 362 right
If the children’s of action were derivative from that parent different, right situation would be but the sue for parent, spouse death of a or child is a new, unrelated, statutory cause of action. Jones, Bloodworth v. (11 193, 658); A. 194 SE2d Western & R. v. Mi Co. (165 chael, 1, 37); Thompson Ga. Watson, 175 13 186 396, Ga. 774, 405 117 ASR Nashville &c. R. Co. v. Hubble, 919, LRA 1915E “Ac tions for statutory origin death are in repose person persons right given to whom such is the statute solely by reason of the survivor’s relationship to the deceased.” (Emphasis supplied.) v. Brickle, Burns SE2d The relation of the deceased to the defendant irrelevant, equally irrelevant is the fact that deceased, brought had could lived, she not have the defendant a wholly different of action in cause her own behalf, which, as pointed Hubble, supra (p. 372), out in utterly is “so different in origin, recovery, of evidence admissible, and in bene Burns, ficiaries.” As was stated in supra, even starting determining of point for the statute limitation on suit well Supreme Happy Valley be different. The Court held in Farms Wilson, of parent death of a children to recover is not limited parent, a co-plaintiff, guilty the fact that the other neg of part proximate of the ligence which was cause the fatality, ruling Walden v. Coleman, and it followed 217 Ga. 599 579) (and incidentally reversed the ALR2d Appeals contrary) which held to the with a de- might cision that a sue and widow recover homicide of husband vehicle, defendant of the applying owner family doctrine, although car the sole cause of the death plaintiff’s daughter, was the driver the car *6 one of the beneficiaries of the action Code under 105-1304. thus It becomes obvious that the fact of relationship mere is of deny not itself to any party litigation sufficient to to the a right beneficiary which has he under law. Each otherwise the his right has own of action which must be determined on the relationship of his to relationship deceased, basis the not on his some on party person’s relationship to other some other the deceased. of Chastain, The case Chastain v. (3) (177 majority opinion cited in the actual supports
fact position. holding clearly simply Its is a demurrer must be sustained the of 5-year-old wife her husband based on the death being disability coverture, child because of wife, under the being not right and, could sue her husband her own the child the disability minority, right. under of she not sue in its could plaintiffs here, however, minors, are as pre- must be by guardian suing sumed the fact none is or next They friend. are no disability under in an action their They statutory father. have to sue whomever the evi- party guilty shows to of dence be the their mother’s death. If why of one of themselves not bar recovery, would should the of their mother, coverture which ceased with her concurrently could not definition exist with a action in of them? supporting there are cases both views in juris
While other dictions, this seems me most consonant with present appears, of It also as stated in status law. 28 ALR2d Anno, 662, and better be the recent reasoned trend of courts throughout country. any event, In of the cause action can right of action only derivative, cut off if the and Georgia be statutory that it is not derivative but is holds new substantive also Sessions S.2d right. (Fla.), See Shiver which points out that the common immunity of the husband law stemmed from the disability property; of the wife to own thereby the husband’s act did not unlawful, cease to be but only remedy personal disability, without as to her because of her Wrongful and that entirely Death Act “an created new action, entirely cause of in an right, recovery new damages suffered them not the de- children,] [the cedent, consequence as of the invasion their legal right by tortfeasor.” “To extend the immunity tortfeasor’s to a new cause of action the survivors of the deceased wife would apply immunity to a contemplated rule situation never wholly its creation and Deposit irrelevant to its results.” Guar- anty Nelson, Bank &c. Co. v. 212 Miss. S2d To extent that the death statute be termed derivative, “its derivation ... is from the act, tortious and not from the person of deceased, so that it parties comes to the named personal the statute free from arising disabilities from the relationship injured party and the tortfeasor.” Kaczo- v. Kalkosinski, rowski Pa. A ALR *7 Indubitably, find no why I reason the fact that the mother remedy would have been without in her during own behaif deprive plaintiffs lifetime should separate these cause of only action which arose her death. WOODLAND, INC. SIEGEL Judge. originated Superior This case in Fulton
Jordan, Siegel against as an action I. Woodland, Mrs. M. allegedly sustained Inc., injuries on No- stoop vember when she fell the rear of an process apartment owned the defendant while leaving apartment in which she been visitor. After rulings petition, only allegation on demurrers to provided defendant “[t]hat railing on type safety stoop or other device' the rear said porch safeguard in order to invitees from falls such as alleged.” proceeded jury, case to trial before a herein judgment jury defendant, found for was rendered