26 Ga. App. 665 | Ga. Ct. App. | 1921
Lead Opinion
Charlie McCarthy brought his action for damages
The facts alleged in the case at bar are so nearly similar to the facts set out in the case of Standard Oil Co. v. Reagan, 15 Ga. App. 572 (84 S. E. 69), and the petition itself is, in so far as the facts would allow, so nearly in the words of the petition in that case, that the court deems it unnecessary to state more fully in this portion of its decision the contents of plaintiff’s petition; and only so much of the facts of the petition are above set forth as are necessary to be considered by this court in ascertaining whether the petition was subject to paragraphs 5 and 6 of the demurrer, which were, respectively, that “ defendants’ acts were not the proximate cause of Kinah McCarthy’s death,” and that “her injuries were solely the result of her own gross negligence.” Keduced to their lowest terms, the foregoing questions raised by demurrer involve but the single question of proximate cause, and in this respect the case at bar is so similar to Reagan's case, supra, that we feel that we can do no better than cite the very clear and comprehensive dis
The tenth paragraph of the original petition recited that “ petitioner shows that his said daughter, Binah, was in good health, and that her services were reasonably worth $60 per month, and that she had a life-expectancy of forty-nine years.” An amendment was offered, and allowed without objection, striking out the words “that she had a life-expectancy of forty-nine years,” and inserting in lieu thereof the following: “ and that her services till she reached the age of twenty-one would amount to the sum above set out, for which he 'is entitled to recover and for which he now seeks to recover.” Since this amendment was allowed without objection on the part of defendants, the demurrer goes to the petition as amended, and not to the petition as it originally stood. See O’Shields v. Ga. Pacific Rwy. Co., 83 Ga. 621(1) (10 S. E. 268, 6 L. R. A. 152).
The main ground of demurrer relied on by defendants was, that there was no right of action in plaintiff, for the reason that the allegations of his petition showed that he was suing for the full value of his child’s life, under the statutory enactment contained in § 4424 of the Civil Code (1910), and that he could not recover thereunder because his petition disclosed that the mother of his child was living, and because the petition did not show that he was dependent upon his minor child within the meaning of the statute. In view of the fact that this code-section is statutory and must be strictly construed, we are inclined to believe that there is much force in defendants’ contention that the plaintiff could not recover under the code-section in "question. See, in this connection, Frazier v. Ga. R. Co., 96 Ga., 785 (22 S. E. 936); Augusta Ry. Co. v. Glover, 92 Ga. 132(3) (18 S. E. 406); East Tenn. &c. R. Co. v. Maloy, 77 Ga. 237(3) (2 S. E. 941); Ga. Railroad & Bkg. Co. v. Spinks, 111 Ga. 571 (36 S. E. 855). However, as we are of the opinion that the petitioner’s case as amended was not brought under this code-section, it is unnecessary to determine this question.
With all deference to the rule that pleadings are to be construed most strictly against the pleader, yet in view of the fact that the amended petition alleges that the eleven-year old child of peti
Judgment reversed.
Concurrence Opinion
concurring specially. I agree with the learned counsel for the defendant in error that the amendment to the petition set forth a new cause of action. I do not think, however, that the petition as amended was properly dismissed on demurrer because of that fact, as the amendment set out a cause of action, and it appears from the bill of exceptions and the record’that the amendment was unconditionally and regularly allowed without objection, and filed. See, in this connection, Dyson v. Southern Railway Co., 113 Ga. 327(4) (38 S. E. 749). I think that the court erred in dismissing the petition on demurrer.