14 Ga. App. 386 | Ga. Ct. App. | 1914
Lead Opinion
1. At common law a cause of action for a personal tort abated with the death of the person in whom the right of action was vested. The General Assembly, in varying the rule of the common law, evidently intended to prevent the abatement of actions for personal injuries, pending at the time of the death of either party, and expressly declared that in case of the death of a plaintiff in such an action the “cause of action” shall survive to the personal representative of the deceased plaintiff, if there is no right of survivorship in any other person. Civil Code, § 4421. This rule in derogation of the common law must of course be construed strictly, but the intention of the legislature must nevertheless be given effect, and it must be presumed that the use by the General Assembly of the term “cause of action,” in the exception as to pending actions, was not unintentional or ill-advised.
2. There was no material error in the trial; and though the verdict of $250 in favor of the plaintiff was small, it does not appear that in awarding this amount the jury were influenced by prejudice or bias;
Dissenting Opinion
dissenting. At common law a cause of action for a persona] tort abated with the death of the person in whom the right of action was vested. The rule of the common law is of force in this State, except where modified by statute. Section 4421 of the Civil Code was intended to save pending actions only. Where, therefore, a mother brought an action for the tortious homicide of her son, and died pending the action, the right to continue the action rested in the legal representative. The cause of action did not, however, survive, and on dismissal of the pending suit a new suit could not be brought by the administrator, either within the ordinary period of limitation or under the statute allowing suits which have been dismissed or nonsuited to be renewed within six months. Peebles v. Charleston & Western Carolina Ry. Co., 7 Ga. App. 279 (66 S. E. 953) ; Frazier v. Georgia R. Co., 101 Ga. 77 (28 S. E. 662); King v. Southern Railway Co., 126 Ga. 794 (55 S. E. 965, 8 L. R. A. (N. S.) 544).