Roberts v. Turner

Stephens, J.

1. As provided in section 4421 of the Civil Code of 1910, no action for the recovery of damages for an “injury to the person” shall abate by the death of either party; but the cause of action, on the death of the plaintiff, survives to his personal representative.

2. “Adultery or criminal conversation with a wife gives a right of action to the husband.” Civil Code (1910), § 4465. The injury is one to the person of the husband. Hutcherson v. Durden, 113 Ga. 987 (39 S. E. 495, 54 L. R. A. 811); Johnson v. Bradstreet Co., 87 Ga. 79, 85 (13 S. E. 250). When the husband dies pending the action it survives to the wife, where she is the administratrix, and therefore the personal representative of the deceased plaintiff.

3. Where the wife as administratrix had by proper order been made a party plaintiff, and the case had proceeded to trial, it was error to dismiss the case upon the ground that the cause of action was one that did not survive to the personal representative of the deceased husband.

Judgment reversed.

Jenkins, P. J., and Sutton, J., concur.