Adams v. Wright

293 S.E.2d 446, 162 Ga. App. 550, 1982 Ga. App. LEXIS 2239
CourtCourt of Appeals of Georgia
DecidedApril 22, 1982
Docket63483
StatusPublished
Cited by15 cases

This text of 293 S.E.2d 446 (Adams v. Wright) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adams v. Wright, 293 S.E.2d 446, 162 Ga. App. 550, 1982 Ga. App. LEXIS 2239 (Ga. Ct. App. 1982).

Opinions

Quillian, Chief Judge.

This action arose out of a claim for the wrongful death of Gail Wright and was first brought by David Wright, the husband of the decedent, individually, and as next friend for their two minor children. Gail Wright died in an automobile and truck collision when an MG Midget automobile in which she was riding as a passenger and David Wright was driving, was struck from the rear by a White tractor-trailer being driven by the defendant Clinton Adams. Adams had leased his truck to the defendant Dennis Truck Lines, Inc., and was insured by the other defendant — Carolina Casualty Insurance Company. The collision occurred in the right hand lane of 1-20 in Richmond County, Georgia, at approximately 12:30 a.m. on the morning of August 3, 1979, while both vehicles were traveling in an easterly direction.

The case proceeded to trial and resulted in a verdict for the defendant. Following the grant of a motion for new trial, David Wright filed a voluntary dismissal of his individual claim, with prejudice, leaving the action pending only as to his minor children. The subsequent trial resulted in a verdict for the plaintiffs in the amount of $150,000.00. The defendants bring this appeal. Held:

1. The first enumeration of error alleges the judgment is erroneous because “David C. Wright had previously dismissed the action and in any case was a necessary party plaintiff.” (Emphasis supplied.) The petition shows the original action was filed by David Wright “Individually” and as “Next Friend” for his minor children. Following the grant of his motion for new trial Wright filed a “Dismissal” in which he appeared “individually, and dismisses his claim against the defendants in the above-stated case, with prejudice.” (Emphasis supplied.) His amended petition also showed he had “dismissed with prejudice his claim against the defendants for the wrongful death of his wife” and that “the plaintiffs are the daughter and son ... of Gail Wright . . .” (Emphasis supplied.)

First, Wright did not dismiss the “action.” “The action” remained pending with his two minor children as plaintiffs. Secondly, the first time this allegation of error was raised was in defendant’s amended motion for new trial — more than six months after judgment was entered. Our CPA requires that “[e]very defense, [551]*551in law or fact, to a claim for relief in any pleading... shall be asserted in the responsive pleading thereto if one is required, except” those specific defenses numbered (1) through (7) “may at the option of the pleader be made by motion in writing ...” Code Ann. § 81A-112 (b) (CPA § 12 (b); Ga. L. 1966, pp. 609, 622, as amended through 1972, pp. 689, 692, 693). Wright’s dismissal of “his claim” was made in an amended complaint. A response to an amended pleading may be made but one is not required. Building Assoc. v. Crider, 141 Ga. App. 825 (1) (234 SE2d 666); Diaz v. First Nat. Bank of Tucker, 144 Ga. App. 582 (2) (241 SE2d 467). However, under Code Ann. § 81A-112 (h) (2) a defense of failure to join an indispensable party may be made in any pleading permitted or ordered, or by motion for judgment on the pleadings, or at the trial on the merits. Here, the defendant did not assert this defense until after verdict and judgment — in his amended motion for new trial. The defense of failure to join an indispensable party is subject to the defense of waiver under Code. Ann. § 81A-112 (h) (2) in the same manner as the failure to state a claim, and both must be asserted before judgment or they are waived. Loukes v. McCoy, 129 Ga. App. 167 (3) (199 SE2d 125); Burgess v. Clermont Properties, 141 Ga. App. 112 (4) (232 SE2d 627). This enumeration is meritless.

2. We find no error in the charge of the court that the two minor children of the plaintiff were entitled to sue for the “full value of the life of the decedent . . .” Defendants contend the children were entitled to sue only for two-thirds, with the father-husband being entitled to one-third. They based their premise upon Code Ann. § 105-1306 (Code 105-1306 as amended through 1971, p. 359) which provides the “husband and/or child or children ... may recover for the homicide of the wife or mother, and those surviving at the time the action is brought shall sue jointly and not separately, with the right to recover the full value of the life of the decedent ...”

Defendants cite Happy Valley Farms v. Wilson, 192 Ga. 830 (16 SE2d 720) (1941) as controlling this issue. We do not agree. Happy Valley, supra, was adjudicated in 1941 and Code Ann. § 105-1306 was amended in 1960 and 1971. The 1971 amendment made some minor changes and is not involved in this issue, but the 1960 amendment was subsequent to Happy Valley and stated: “Provided, however, if any one or more of those comprising the husband and children . . . shall desire to bring an action seeking to recover for the tortious homicide of such mother, he or they may file such action and cause a copy thereof to be served personally upon the remaining children... and any of such persons may intervene in said case as an additional plaintiff at any time before final judgment. After final judgment, any of such persons not a party plaintiff shall have no further right of [552]*552action against the alleged tortfeasor; but any of such persons not duly served as provided above shall have a right against the parties plaintiff for his or their proportionate part of the recovery in said action.”

This legislation evidences a clear intent that less than all of the potential plaintiffs may bring an action for the full value of the life of the decedent, and all potential plaintiffs who are not served may bring a subsequent action against the successful plaintiffs for a proportionate share of any amount recovered from a tortfeasor. See 8 EGL 166, Death by Wrongful Act, § 33; Eldridge, Wrongful Death Actions 83, § 10-26. The 1960 amendment to this statute did not change any right of the defendant, and he has no standing to object to an action by less than all plaintiffs since only one action can be brought against him. Hence, it was not error for the trial court to charge that the minor children were entitled to sue for the full value of the life of the decedent. See American Erectors v. Hanie, 157 Ga. App. 687, 690 (278 SE2d 196).

3. Defendant alleges error in the charge of the trial court that “[i]n a suit by an infant the fault of the parent, or of custodians selected by the parents is not imputable to the child.” This charge is taken, verbatim, from Code Ann. § 105-205 (Code § 105-205). It is adjusted to the evidence and was proper under the facts of the instant case. Atlanta &c. Rd. Co. v. Loftin, 67 Ga. App. 601 (21 SE2d 290); Charles v. Raine, 99 Ga. App. 1, 5 (107 SE2d 566); Fallaw v. Hobbs, 113 Ga. App. 181, 182 (147 SE2d 517); Walden v. Coleman, 217 Ga. 599, 603, 605 (124 SE2d 265).

4. It was not error for the trial court to fail to charge on “accident.” Simms v. Camp Concrete Co., 156 Ga. App. 771 (1) (275 SE2d 357); accord: Cohran v. Douglasville Concrete Products, 153 Ga. App. 8 (1) (264 SE2d 507); Pirkle v. Triplett, 155 Ga. App. 945 (3) (274 SE2d 59).

5. The defendants contend the charge “in its entirety” was confusing and misleading “insofar as it imports the term ‘plaintiff’ to David C. Wright, his children and the decedent interchangeably.” We do not find this objection to the charge in the record.

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Adams v. Wright
293 S.E.2d 446 (Court of Appeals of Georgia, 1982)

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Bluebook (online)
293 S.E.2d 446, 162 Ga. App. 550, 1982 Ga. App. LEXIS 2239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-wright-gactapp-1982.