East Tennessee, Virginia & Georgia Railroad v. Cox

57 Ga. 252

• Court: Supreme Court of Georgia
• Decided: July 15, 1876
• Status: Published

Opinion

Jackson, Judge.

Cox sued the railroad company for a tort on the person of his wife, who was hurt by reason of the crossing of the road not being kept in good condition. In this action he joined his wife as party plaintiff. The company demurred because she was so joined, and the court overruled the demurrer, and the defendant excepted. So that the single question is, does the joinder of the wife vitiate the action in such a case so as to make it the duty of the court to dismiss it. The idea of •the plaintiff in error is, that section 2960 of our Code alteré the rule of pleading of the common law. At common law the husband must join the Avife to bring such a suit: 1 Chitty’s Pleading, 73. But it is urged that, as by section 2960 of the Code, the right is conferred on the husband to sue for a tort to the Avife, as to a child or servant, and all are grouped in the same section, and apparently put on the same footing, therefore the rule of pleading is changed. It may probably be to the extent that the wife need not be joined, and that the husband may sue alone; but certainly the rule is not repealed. The pleading at common law is not altered expressly, nor by implication; and the joinder is harmless, if not the correct practice. We rather think the old fashioned way the safer, as no other is furnished by the Code. At all events, it is right, and a good way, and there might be the right of survivorship in the wife, and we affirm the judgment.

Judgment affirmed.