9 Ga. App. 371 | Ga. Ct. App. | 1911
Mrs. Vaughan sued the railroad company because of personal injuries received by her when a passenger on one of its trains, and recovered a verdict for $9,000. The defendant has excepted, assigning a number of grounds of error; but there are many of them as to which it will not be necessary to rule, on account of the nature of the decision which is about to be rendered in the case. The petition was brought in the name of “Mrs. Willie Mae Vaughan;” but did not state whether she was a married woman, a widow, or a divorced person. Among other elements of' damages, she sought to recover for loss of salary and loss of earning capacity; it being alleged in this respect that she was employed as a traveling saleswoman and as such she was earning $100 per month. She also asked for damages on account of hospital expenses, doctor’s bill, and medicine, of about $1,000 in amount. In addition to this she sought damages for certain physical injuries which were inflicted upon her, and for pain and suffering.
At the appearance term the defendant filed demurrers to the petition, on the following grounds:
“Because said petition is filed in the name of Mrs. Willie Mae Vaughan, which implies that she is a married woman, but there is no distinct allegation in said petition showing whether petitioner is a single or married woman; therefore the petition is too vague and uncertain, for this reason.”
“Because, in the seventeenth paragraph of plaintiff’s petition, she alleges that at the time of said accident she was employed as a traveling saleswoman, and was earning $100 per month in such capacity, but she does not allege whether she was thus engaged with the consent of her husband, or in her own right, nor does she allege any reason why she was dependent upon her earnings for her support.”
“Because, in the fourteenth paragraph of said petition, certain expenditures are set forth for doctor’s bill, hospital expenses, medi*374 cine,, and loss of salary, without such allegations as would show petitioner’s right to recover for such items and expenses incurred.”
“Because, under the allegations contained in said petition, plaintiff is a married woman, and as such lias no right to recover for loss of time and services and for medical bill and hospital expenses, as set forth in said petition.”
The court overruled the demurrers, and exceptions pendente lite were preserved.
At the trial it appeared, from the plaintiff’s testimony, that at the time of her injury the plaintiff was a married woman,.and that she was living separate from her husband, whose name was Smith, and that with his consent she was receiving and keeping her earnings for her own use and benefit. A divorce suit was pending between her and Mr. Smith at the time of the injury. Between the date of the injury and the date of the filing of the suit the final verdict in the divorce suit was granted, and she was married to Mr. Vaughan, with whom she was living at the time of the trial. The marital status of the plaintiff is involved in a number of different ways in the course of the decision of the points raised in the case. Some of the points arise on .consideration of the demurrers just mentioned, but in the motion for a new trial the point is also made that, inasmuch as she had remarried before the bringing of the s.uit, her second husband, and not she, would be entitled to recover for the loss of earning capacity which the injury inflicted on her, unless, indeed, this right was in her first husband.
The most serious objection to the petition was that pointed nut by the other special demurrers to which we have referred — that in it the plaintiff sought to recover damages because of the loss of her earnings, without alleging whether she -was engaged in the business from which these earnings were received with the consent of her husband, or in her own right, and that she' sought to. hold the company liable to her for doctor’s bills, hospital charges,, and medicine, without stating further any reason how or why she, and'not her husband, beckm'e liable for these items of expense, so as to authorize her to recover for them as a part of her damages.
It is true that the marked tendency noticed by the learned Justice “to magnify the office and the importance of the sjjecial demurrer” probably reached its acme when the case of Kemp v. Central Ry. Co., supra, again appeared in the Supreme Court sub. nom. Central of Georgia Ry. Co. v. Brandenburg, 129 Ga. 115 (58 S. E. 658), when the decision sustaining the special demurrers in that case was rendered by a divided court. The tendency of the Supreme Court and of this court is now somewhat in the other direction. Cf. Bittick v. Ga., Fla. & Ala. Ry. Co., 136 Ga. 138 (70 S. E. 1106), in which the views expressed by the dissenting Justices in the Brandenburg case seem to have been recognized as controlling. Despite this tendency to somewhat modify the breadth of the scope which was formerly given to the office of special demurrer’, there has been no tendency to dimmish the general effect of the rule, so far as it allows the defendant by special demurrer to challenge the petition, if it fails to set out the basal facts definitely and without ambiguity. As Justice Lumpkin says in the recent case of Riley v. Wrightsville & Tennille R. Co., 133 Ga. 413, 421 (65 S. E. 890, 893, 24 L. R. A. (N. S.) 379) : “Useless detail and elaboration
Therefore, in this case, when the plaintiff showed by her petition that she was a woman, and left it doubtful as to whether she was married or single, and whether she was living separate from her husband, or whether there was any agreement between her and her husband that she should have her own earnings, it left “vital facts in the case pleaded in vague, uncertain, or ambiguous terms,” and as there was a special demurrer pointing out this very delinquency, and as the plaintiff failed and refused to amend in this respect, we are constrained to hold that the court erred in overruling the special demurrer. In ruling this we have not overlooked the fact that the wife, as well as the husband, has an interest in her earning capacity, and that she may show that she has lost that earning capacity, as proof tending to establish the degree of pain and mental anguish she has suffered, but this is a very different thing from recovering for loss of earnings or loss of earning capacity as such. Powell v. Augusta R. Co., 77 Ga. 192, 200 (3 S. E. 757); Atlanta Street Ry. v. Jacobs, 88 Ga. 647 (15 S. E. 825); Metropolitan R. v. Johnson, 90 Ga. 500, 508 (16 S. E. 49).
The judgment will be reversed, because the court erred in overruling the special demurrers, but with direction that the trial court give the plaintiff the privilege of saving the petition from dismissal by making an amendment adequate to cure the deficiencies pointed out. Cf. Riley v. Wrightsville & Tennille R. Co., 133 Ga. 413 (5), (65 S. E. 890, 24 L. R. A. (N. S.) 379).
Judgment reversed, with direction.