Berrien County v. Allen

79 S.E. 1129, 13 Ga. App. 777, 1913 Ga. App. LEXIS 355

• Court: Court of Appeals of Georgia
• Decided: November 25, 1913
• Docket: 5050
• Status: Published

Opinion

Roan, J.

1. The petition stated a cause of action, and the court did not err in overruling the demurrers.

2. There was sufficient evidence to authorize the verdict.

3. The court erred in giving-the following charge complained of in the motion for a new trial: “If you believe, from the evidence, that she is entitled to recover, the elements that you would be authorized to consider in determining the amount of damages would be how far, if any, her capacity to discharge her ordinary daily duties has been diminished; and if so diminished, allow compensation for that diminution.” This instruction was erroneous because the evidence shows that the plaintiff was a married woman, and her husband would be entitled, if any one, to recover for the loss of the wife’s services. Wrightsville & Tennille R. Co. v. Vaughan, 9 Ga. App. 371 (71 S. E. 691); Roberts v.Haines, 112 Ga. 842 (38 S. E. 109); Georgia R. Co. v. Tice, 124 Ga. 460 (52 S. E. 916, 4 Ann. Cas. 200). The wife and the husband both could not recover for the diminished capacity to discharge her duties. It being impossible to determine what damages, if any, the jury allowed for diminution of the plaintiff’s capacity to discharge such duties, the case must be sent back for a new trial. Judgment reversed.

The defendant demurred to the petition generally, and demurred specially as follows: To paragraph 3,' because it is not sufficiently specific as to the point where the alleged injury occurred, and it does not allege why it was necessary for the plaintiff to cross the bridge, or whether she could not have passed on either side of it. To paragraph 4, because it is not stated how the plaintiff exercised ordinary care in driving on the bridge, or at what rate of speed she was driving; and it is not alleged what plank was broken, or in what part of the bridge it was, and it does not 'appear how the plaintiff was thrown from the buggy. To paragraph 5, because it is vague and indefinite in regard to the extent of the injury, and alleges that the plaintiff’s hand and arm are useless and then alleges that she can use them to but little service. To paragraph 6, because no specific acts of negligence are alleged, and the allegation that the plaintiff will suffer to the end of her life is an opinion of the pleader. To paragraph 8, because the facts alleged do not show that the broken plank was the proximate cause of the injury, and it appears that the plank had been replaced by some party unknown to the plaintiff, and not by the county authorities. To paragraph 9, because the allegations do not show that the injury was from any proximate cause for which the defendant is chargeable. By amendment the defendant demurred on the. ground that the bridge described is not such a bridge as is contemplated by section 748 of the Code, giving citizens the right to bring suit against a county for damages caused by defective bridges, whether erected by county authorities or by contractors. The court overruled the demurrer.

The trial of the case resulted in a verdict in favor of the plaintiff, for $1,000. The case came to this court on exceptions to the overruling of the demurrer and to the refusal of a new trial.

W. G. Harrison, for plaintiff in error. Lovett & Murray, B. A. Hendricks, contra.