Harrell v. Gardner , 115 Ga. App. 171 ( 1967 )

Per Curiam.

So far as this record shows the administratrix, the resident defendant, filed no demurrer to the petition. The appellant’s demurrer was general “on the ground that it fails to set forth a cause of action against this defendant.” Appellant contends that this is true for the reason that, being a nonresident, the court has no jurisdiction over him unless a cause of action is stated against the resident defendant, and that it fails to do so. Appellee contends that the demurrer fails to raise the question of whether a cause of action is set out against the administratrix, for which reason no question is presented for decision. “The absence of jurisdiction, appearing on the face of a petition, may be raised by general demurrer complaining that the petition fails to allege a cause of action for the relief sought.” Mullally v. Mullally, 199 Ga. 708 (2) (35 SE2d 199); Modern Homes Const. Co. v. Mack, 218 Ga. 795, 797 (130 SE2d 725). Where the facts appear upon the face of the petition, “the question raised by the general demurrer was jurisdictional, and it was not necesary for the demurrer to specially set forth that the court was without jurisdiction to entertain the case.” Ruis v. Lothridge, 149 Ga. 474 (2) (100 SE 635). The demurrer in that case was merely that the petition failed to set out a cause of action. In Young v. Koger, 94 Ga. App. 524 (95 SE2d 385) the nonresident defendant filed a general demurrer alleging that the petition failed to set forth a cause of action against him, and this court held that where the demurring defendant was a nonresident, and the resident defendant filed no demurrer, the question was raised, and it would not be error for the trial court to dismiss the petition as to both defendants where as a matter of fact no cause of action was set out against the defendant who failed to demur. However, in Heath v. Miller, 197 Ga. 443 (29 SE2d 416), where one defendant filed a general demurrer to the effect that the petition set out no cause of action against him, it was held that the demurrer inured to his benefit only, although the state of facts on which the plaintiff had proceeded was the same as to all defendants. This only means, however, that a petition will not be dismissed against a defendant who fails to demur, not that the question of the resident’s liability may not be considered, if necessary to adjudicate whether the nonresident may be held in the county in which he is sued. A demurrer in the language of the one here involved was filed by the nonresident defendant in Richards & Associates v. Studstill, 212 Ga. 375, 378 (93 SE2d 3), and the Supreme Court, reversing the Court of Appeals, held: “Hence, as to the nonresident defendant Richards & Associates, Inc., the petition alleges no cause of action which, under the venue provision of the Constitution of this State, can be maintained against that defendant in the Superior Court of Dodge County, and its general demurrer should have been sustained.” It follows that the demurrer filed in this case is sufficient to raise the jurisdictional question.

“Under the statute law of Georgia a wife can not recover of a husband with whom she is living in lawful wedlock, for a tort resulting from his negligent operation of an automobile in which they were riding at the time of the injury.” Heyman v. Heyman, 19 Ga. App. 634 (92 SE 25). The fact that the husband is dead at the time of the suit is immaterial for the reason that the husband’s administrator is subject to suit “just as the wrongdoer himself would have been during his life. . . .” Code § 3-505; Wrinkle v. Rampley, 97 Ga. App. 453, 454 (103 SE2d 435).

Since the mother, for whose wrongful death this action is brought, could not if she were living bring a negligence action against her husband, may the children sue the father under Code Ann. § 105-1306 for the wrongful death of the mother when the mother’s death allegedly resulted from his negligent tort?

The gist of § 105-1306 was “codified from the Acts of 1850 and 1855-6—Cobb’s Digest, p. 476; Acts of 1855-6, p. 155. . .” Atlanta & W. P. R. Co. v. Venable, 65 Ga. 55. Neither the original Act nor the current Code section names the persons or classes of persons whom this action for wrongful death can be brought against. It is silent. The question therefore is one of legislative intent, i.e., what did the General Assembly intend in 1850 when it changed the common law and authorized a child, whether emancipated or not, to bring an action for the wrongful death of its mother? Did the General Assembly intend to authorize an action by a child against its father for the wrongful death of its mother, or to authorize this action only against third persons other than the father? We are of the opinion that it intended the latter.

We are aware that some states liberally construe a statute in derogation of the common law. See 82 CJS 942-943, § 393. However, in Georgia this cannot be done; statutes in derogation of the common law are to be strictly construed. See Hood v. Southern R. Co., 169 Ga. 158 (149 SE 898); Watson v. Thompson, 185 Ga. 402 (195 SE 190); Mott v. Central R., 70 Ga. 680.

We find one decision in Georgia that appears to be completely analogous. It is Chastain v. Chastain, 50 Ga. App. 241 (3) (177 SE 828). There a mother sought to bring an action against the husband and father for wrongful death of an unemancipated child growing out of a negligent tort. Code Ann. § 105-1307 authorized a mother to bring an action for wrongful death of her child. By enacting this statute, did the General Assembly intend to authorize an action for wrongful death of her child against the father as well as any other third person? In Chastain this court held such an action to be against the'public policy of this state for the reason that “Had the child not died, no right of action would have arisen in its favor against its father because of the injury. Its death did not give to either of its parents as against the other, nor to its personal representative, a right of action against either parent for the alleged negligent tort. . .”

If the General Assembly did not intend1 in Code Ann. § 105-1307 to authorize a mother to sue the father for the alleged wrongful death of a child, it would seem to follow that the General Assembly consistently did not intend in Code Ann. § 105-1306 to authorize a child to sue the father for the alleged wrongful death of the mother.

The recent case in the United States Court of Appeals, 362 F2d 311 (5th Cir.), Union Bank &c. Co. v. First Nat. Bank &c. Co., allowing a similar action, was based primarily upon the point that the deceased parent was covered by liability insurance (alleged in the petition). In Bulloch v. Bulloch, 45 Ga. App. 1, 10 (163 SE 708), this court stated: “Something has been said of liability insurance, but the petition shows nothing as to such insurance, and we cannot presume its existence. Moreover, the fact that the defendant father may have carried liability insurance upon' his automobile would be irrelevant, since liability must exist before such insurance would be applicable, and a policy of insurance could not establish that fact.”

The trial court erred in overruling the demurrer of the nonresident defendant.

Judgment reversed.

Felton, C. J., Bell, P. J., Frankum, P. J., Jordan, Hall, Eberhardt, Pannell and Quillian, JJ., concur. Deen, J., dissents.