Glover v. Savannah, Florida & Western Railway Co. , 107 Ga. 34 ( 1899 )

Cobb, J.

Sarah Glover sued the railway company for damages alleged to have been received by reason of the homicide of her husband by the defendant. Upon the trial the court granted a nonsuit, and the case is here upon a bill of exceptions sued out by the plaintiff, complaining of the granting" of the nonsuit and other alleged errors; and upon a cross-bill sued out by the defendant, assigning error upon various rulings of the court.

1. The various amendments offered by the plaintiff did not substantially change the cause of action attempted to be set forth in the original petition, and therefore -were not objectionable on the ground that they set forth a new and distinct cause of action. Ellison v. Georgia R. Co., 87 Ga. 691; Central R. Co. v. Kitchens, 83. Ga. 83; Harris v. Central R. Co., 78 Ga. 525. There was enough to amend by in the original petition,, and the petition as amended set forth a cause of action.

2. There was no error in refusing to dismiss the petition on the ground that it was barred by the statute of limitations. The petition alleged that the husband of petitioner was injured on April 2, 1895, and that his death resulted from these injuries on the 16th day of November, 1895. The suit was filed October 11, 1897. No cause of action arose in favor of the widow in this case until the death of the husband. Civil Code, §3828; Western & Atlantic R. Co. v. Bass, 104 Ga. 390. It is not necessary in the present case to determine when an action of this character would be barred, as in no event is there any statute that could be applicable to such,a ease which would raise a bar within a period of less than two years.

3. The defendant demurred to the original petition on the ground that it did not allege that the plaintiff’s husband was free from fault, and the court was about to sustain the demurrer, when the plaintiff amended by adding these words: “ In discharging his duties as alleged, your petitioner’s husband was free from fault.” Plaintiff now complains that the court erred in holding that the amendment was necessary. As the plaintiff submitted to the ruling of the court and amended her petition to conform thereto, she can not be heard now to say that the amendment was not necessary. If she had desired to except to the ruling of the court on this subject, she should have submitted to an order dismissing her case and filed her exceptions to that judgment. See Rome R. Co. v. Thompson, 101 Ga. 26.

4. Without expressing any opinion as to what should be the final result of this case, we think the court erred in granting a nonsuit, as the issues raised by the evidence on the questions of negligence involved were of such character that the same should have been submitted to the jury under proper instructions.

Judgment on main hill of exceptions reversed; on cross-hill of exceptions affirmed.

All the Justices concurring.