COMPLETE AUTO TRANSIT, INC. v. FLOYD, Admr., 214 Ga. 232, 104 S.E.2.d 208 (1958)
Linked as:
Text
Highsmith, on Knox, Jr., contra.Cubbedge Snow, Malone Sharpe, T. Ross Sharpe, Martin, Snow, Grant & Napier, for plaintiff in error.
1. The plaintiff's contention that no constitutional question is raised by the pleadings in this case is without merit.
2. Ga. L. 1952, pp. 224, 225, amending Code 3-505, is not unconstitutional for any reason assigned. Count 1 of the petition, brought by an administrator to recover damages for pain and suffering of the deceased, alleged a good cause of action based upon said act, and the trial court did not err in overruling the general demurrer to that count.
3. Ga. L. 1952, pp. 245, 246, is unconstitutional as to the defendant in this case in this case in that it deprives the defendant of its property without due process of law, and the trial court erred in overruling the defendant's general demurrer to count 2 of the petition which is based upon said act.
On June 17, 1957, Deroy Floyd, as administrator of the estate of his deceased wife, Mamie M. Floyd, filed his petition against Complete Auto Transit, Inc., in which he sought recovery of damages of $50,000 for pain and suffering of his deceased wife, and medical, hospital and funeral expenses in the sum of $972. He alleged that the deceased was injured on July 27, 1955, when the tractor on which she was riding was struck from the rear by a transport unit of the defendant; that she suffered excruciating pain from the date of her injury until her death on August 7, 1955, and incurred medical, hospital and funeral expenses; and that her injury and death were the result of the defendant's negligence. On July 11, 1957, the defendant filed a plea in bar in which it was alleged that prior to her death the deceased had not filed suit for pain and suffering and therefore any action she might have had therefor did not survive to her administrator; that the husband and ten children of the deceased had previously filed suit in the Federal court for the full value of the deceased's life in which case judgment was rendered in their favor for $107,500; and that that suit was a bar to the present action for pain and suffering. On July 11, 1957, the defendant also filed an answer generally denying the allegations of the petition and, in the "fifth defense" thereof, making the same contentions as made in the plea in bar. Likewise, on the same date, the defendant demurred generally on the ground that the petition stated no cause of action and demurred specially on the ground of a misjoinder of causes of action. In its demurrers the defendant demurred generally to paragraphs 13 and 15 of the petition, which contained allegations as to the cause of action for pain and suffering, and also to paragraph 14, which set forth the cause of action for medical, hospital and funeral expenses. On July 15, 1957, the plaintiff filed a demurrer to and motion to strike the defendant's plea in bar on the ground that it did not set out any defense either in law or in equity and on the same date demurred to and moved to strike the "fifth defense" of the answer. On February 8, 1958, the defendant filed a defensive pleading denominated "Elaboration of an Amendment to the Original Demurrers," which attacked paragraphs 13 and 15 of the petition on certain constitutional grounds and prayed that said paragraphs be stricken, and which also attacked paragraph 14 on constitutional grounds and prayed that it be stricken. On February 8, the plaintiff amended his petition striking therefrom paragraph 14 (the allegations which sought recovery for medical, hospital and funeral expenses) and adding count 2 in which he sought recovery for these items. Thereafter, on the same date, the defendant filed a renewal of its demurrers. At a hearing on February 8, 1958, the trial court sustained the plaintiff's demurrers and motions to strike the plea in bar and the "fifth defense" of the answer and overruled all the defendant's demurrers to the amended petition. To these rulings adverse to it the defendant excepts.
1. The plaintiff contends that under the pleadings in this case no constitutional question as to the validity of the statutes involved was properly raised. Since this court's jurisdiction of the case, which is a suit for damages, depends entirely upon whether a constitutional question is presented for decision, we will first pass upon this question. It is contended that the "elaboration and amendment" of demurrers, filed more than five months after the appearance day, was filed too late. While it is true that special demurrers must be filed on or before the appearance day (Ford v. Fargason,
2. By a plea in bar and in the "fifth defense" of its answer, the defendant sought to bar the present action by the administrator on the ground of a former recovery by the husband and children of the deceased. It is alleged that the deceased's husband and children filed suit in the Federal courts for the full value of the deceased's life, that judgment was rendered in their favor in the sum of $107,500, and that the present suit is banned by the recovery in that suit. Code 3-607 provides in part as follows: "A former recovery, or the pendency of a former suit for the same cause of action, between the same parties, in the same or any other court that has jurisdiction, shall be a good cause of abatement." But in Georgia R. & Bkg. Co. v. Tice,
The next question raised by the plea in bar, "fifth defense," and general demurrer is that the petition did not state a cause of action in the administrator for pain and suffering of the deceased since the petition did not allege that the deceased, prior to her death, had brought an action to recover for pain and suffering; that any right of action in her under these circumstances did not survive her; and that the petition by the administrator should be abated and dismissed.
Count 1 of the petition, seeking to recover damages for pain and suffering, is predicated upon Ga. L. 1952, pp. 224, 225, which amended Code 3-505 to provide that no cause of action for the recovery of damages for homicide, injury to person or injury to property should abate by the death of either party. The defendant has attacked this act as being unconstitutional, and it therefore becomes necessary to pass upon the validity of the act.
Prior to the act of 1952, pp. 224, 225, Code 3-505, so far as is material here, provided that no "action for the recovery of damages for homicide, injury to person, or injury to property," should abate by the death of either party, and that act amended this section to provide that no action, "or cause of action," etc., should abate. The defendant contends that this act, adding the words "or cause of action" to the Code section is unconstitutional as being in violation of Art. 3, Sec. 7, Par. 16 (Code, Ann., 2-1916), which provides that, "No law, or section of the Code shall be amended or repealed by mere reference to its title, or to the number of the section of the Code, but the amending, or repealing act, shall distinctly describe the law to be amended or repealed, as well as the alteration to be made," and in violation of Art. 3, Sec. 7, Par. 8 (Code, Ann., 2-1908), which provides that, "No law shall pass which refers to more than one subject matter, or contains matter different from what is expressed in the title thereof." While the defendant in its brief does not argue the first question, and so far as we remember, did not argue the question orally, his contention in this respect is clearly without merit. See Peeler v. Central of Ga. Ry. Co.,
As to the second contention as to the unconstitutionality of the act, the title thereof clearly states that it is "An Act to amend Section 3-505 of the Code of Georgia of 1933, relating to the abatement and survival of actions and causes of action, by inserting" in a designated place therein the words "or causes of action," and "providing how said section, when so amended shall read; and for other purposes." The act refers to only one subject matter, that relating to the abatement and survival of actions and causes of action, and the matter contained in the act is just what is expressed in the title thereof. The title of the act makes it plain that it deals with the subject of the abatement and survival of actions and causes of action by adding to the body of the Code section the words "or causes of action," which is exactly what the act did. The general object of the law is all that need be indicated by the title, and provisions germane to the general subject matter embraced in the title of an act and which are designed to carry into effect the purposes for which it is passed may be constitutionally enacted therein. Wright v. Fulton County,
Georgia R. & Bkg. Co.,
Clearly, the purpose of the amending act of 1952, pp. 224, 225, was not to create a new cause of action, as is contended by the defendant, but was to provide for the survival to the administrator of causes of action that existed in the deceased person before his death. We are of the opinion that the legislature could have had no other purpose in mind and that the effect of this amendment, as applied to the instant case, is to preserve the cause of action of the deceased, Mamie M. Floyd, and to permit an action thereon by her administrator.
The petition alleged a good cause of action on behalf of the administrator for damages for pain and suffering suffered by the deceased before her death, and the trial court did not err in sustaining the demurrers and motions to strike the plea in bar and the "fifth defense" and in overruling the defendant's general demurrer to count 1 of the petition.
3. In count 2 of the petition the plaintiff seeks to recover medical, hospital and funeral expenses resulting from her negligent homicide by the defendant. Ga. L. 1952, pp. 245, 246 (Code, Ann., 105-1310), upon which this claim is based, provides as follows: "Where death of a human being results from a crime or from criminal or other negligence, the personal representative of such deceased person shall be entitled to recover for the funeral, medical, and other necessary expenses resulting from the injury and death of the deceased person." The defendant attacks the act on the ground that it violates the due process clauses of the State and Federal Constitutions in that said act subjects the defendant to a double recovery because, prior to the enactment thereof, a husband had the right to recover the damages sued for in this case, and the act does not purport to repeal the husband's right of action but creates an additional right of action in the personal representative of a decedent. In our opinion the defendant's contention is well founded. Under the common law and under the statutory law of this State, a husband is bound to support and maintain his wife and furnish her the necessities of life (Code 53-510), and this includes medical and hospital expenses and the expenses of burial. Fincher v. Davis,
not have had a cause of action to recover these items as damages. That right is in her husband, and the same applies as to funeral expenses. The statute attempts to subject the property of the defendant to a claim by the administrator when under the law neither the administrator nor the decedent has any legal liability therefor. Where the husband is liable to furnish his wife the necessaries of life and a cause of action exists in him for her medical, hospital and funeral expenses by reason thereof, an act of the General Assembly conferring upon the wife's administrator a right to recover for these things deprives the defendant of his property without due process of law in that it requires him to pay one to whom he is under no legal liability so to do. Lloyd Adams, Inc. v. Liberty Mutual Ins. Co.,
Under the allegations of this petition, Ga. L. 1952, pp. 245, 246, is unconstitutional as to this defendant, and the trial court erred in overruling the general demurrer to count 2 of the petition.
Judgment affirmed in part and reversed in part. All the Justices concur.
1958
Sponsored links
