Callaway v. Livingston , 28 Ga. App. 453 ( 1922 )

Broyles, C. J.

(After stating the foregoing facts.) In our opinion the petition failed to set out a cause of action, and the trial judge erred in overruling the general demurrer interposed. The petition affirmatively shows that it is based upon acts of negligence alleged to have occurred prior to the death of White, and upon negligence alleged to have occurred after his death.

Under the settled law of this State no recovery can be had for the acts of negligence on the part of White, his agents or representatives, alleged to have occurred prior to his death, since no suit based upon such acts 'was pending at the time of his death. This principle is set forth in the case of Smith v. Jones, 138 Ga. 716 (70 S. E. 40), where it was held: “ At common law a cause of action for a personal tort abated on the death of the tort-feastor. This rule was modified by statute (Civil Code, § 4421), so that it should not apply in case of the death of the defendant. The phraseology of that section leaves it plain that the exception was limited to cases where action had been instituted against the tortfeasor before his death. If the tort-feasor died before suit against him, the cause of action did not survive. See Frazier v. Georgia R. Co., 101 Ga. 77 (28 S. E. 662); Southern Bell Tel. Co. v. Cassin, 111 Ga. 581 (36 S. E. 881, 50 L. R. A. 694); King v. Southern Ry. Co., 126 Ga. 798 (55 S. E. 965, 8 L. R. A. (N S.) 544); Peebles v. Charleston & Western Carolina Ry. Co., 7 Ga. App. 279 (66 S. E. 953).” See also, to the same effect, Leathers v. Raburn, 17 Ga. App. 437 (87 S. E. 754).

Nor can there be any recovery, under the allegations of the petition, for the acts of negligence alleged to have occurred after the death of White. In order to recover for such acts of negligence, suit should have been.brought against the executor of White’s estate in his individual capacity, and not in his representative capacity. The petition clearly shows that this suit was brought against the estate of White, and not against the executor thereof individually. Neither executors nor administrators can by any tortious act create liability against the estate represented by them, except where pecuniary advantage results therefrom, to the benefit of the estate. Their torts are individual acts, for which the sole remedy of the person injured is to sue them individually. The rule is the same whether injury results from intentional wrong or from mere negligence. 11 Am. & Eng. Enc. of Law (2d ed.), 942. This principle has been recognized and applied in the following Georgia cases: Parker v. Barlow, 93 Ga. 700 (21 S. E. 213); Anderson v. Foster, 105 Ga. 563 (32 S. E. 373); Carr v. Tate, 107 Ga. 237 (33 S. E. 47); Hundley v. Pendleton, 9 Ga. App. 268 (70 S. E. 1115). The facts alleged in the petition in the instant case do not bring it within any exception to the general rule.

It follows, from what has been said, that any cause of action founded upon acts of negligence on the part of White, his agents or representatives, in failing to repair the building and chimney during his lifetime abated with his death, since no suit based upon such acts of negligence was pending at that time; and that any subsequent acts of negligence of his executor in failing to repair the building and chimney could not be the basis of an action against the estate.

The request of counsel for the defendant in error, that the judgement of the lower court be affirmed with direction that the plaintiff be permitted to amend his declaration, verdict, and judgment, by striking therefrom the representative character of E. H. Callaway, and also the name of J. B. White wherever it occurs, is denied. Under the allegations of the petition, such an amendment would be ineffective to set out a cause of action against the executor in his individual capacity. The only mention of the defendant in the petition is found in the statement of the case, where it is alleged that “ Solomon Livingston brings this his complaint against E. H. Callaway, in his representative capacity as executor of the estate of J. B. White, deceased,”, and in the first paragraph, where it is alleged that “ defendant, in his representative capacity as aforesaid, is indebted to your petitioner in the sum of $20,000,” and in the prayer of the petition, which is as follows: “ Your petitioner prays judgment against E. H. Callaway, in his representative capacity as executor of the estate of J. B. White, deceased. ” Therefore, if the suggested amendment to the petition were allowed, the petition would require many other amendments before it would set forth a cause of action against the executor in his individual capacity. See, in this connection, Smith v. Ardis, 49 Ga. 602; Shepherd v. Southern Pine Co., 118 Ga. 292 (2) (45 S. E. 220). Moreover, if the executor is to be held personally liable in this case, he is entitled, as a matter of right and justice, to have the jury try the case between him and the plaintiff, instead of trying it (as they did) as between the estate of the deceased and the plaintiff. See, in this connection, Horn Trunk Co. v. Delano, 162 Mo. App. 402 (142 S. W. 770).

The error in overruling the general demurrer to the petition rendered the further proceedings in the case nugatory.

Judgment reversed.

Luke and Bloodworth, JJ., concur.