Opinion
17429.
ARGUED MARCH 13, 1951.
DECIDED APRIL 9, 1951. REHEARING DENIED MAY 16, 1951.
Equitable petition. Before Judge Andrews. Fulton Superior Court. January 18, 1951.
J. V. Poole, for plaintiffs.
Heyman, Howell Heyman, Morris B. Abram, and Robert G. Young, for defendants.
Where a husband and father is killed by a train, and the widow makes a settlement for the wrongful death, and subsequently the children, asserting that the settlement was fraudulent and that the widow refuses to enter a suit to cancel the settlement and recover for the value of the life of the deceased, seek an order of court authorizing the use of the widow's name as plaintiff and attach a copy of the proposed suit, and where the proposed suit shows by its allegations that it is barred by the statute of limitations, it is subject to a demurrer upon that ground.
No. 17429. ARGUED MARCH 13, 1951 — DECIDED APRIL 9, 1951 — REHEARING DENIED MAY 16, 1951.
A suit, filed by three minor children, for the death of their father previously came to this court, and was transferred to the Court of Appeals. Odom v. Atlanta West Point R. Co., 204 Ga. 328 ( 49 S.E.2d 821). The Court of Appeals, in affirming an order sustaining a general demurrer, held that "Code, § 105-1302, makes no provision for the children of a deceased father to institute an action for his wrongful homicide while the widow of the deceased is still in life." Odom v. Atlanta West Point R. Co., 78 Ga. App. 477 ( 51 S.E.2d 466).
Subsequently, on December 22, 1950, the children of Charles G. Odom, some of whom are minors, brought a proceeding in the nature of an equitable petition against his widow, Mrs. Nannie Odom, and Atlanta and West Point Railroad Company, asserting that their father was killed November 16, 1947, by the negligence of the railroad company, that the widow and the company had made a fraudulent settlement of the claim for damages against the company for the death of their father, that the widow refuses to institute a suit to void the fraudulent settlement and to recover damages for the value of his life. Attached to the petition was a copy of the proposed suit for damages to be brought by the widow.
The prayers were that the court grant an order authorizing the institution of the suit, that the previous settlement be declared null and void, for a rule nisi to show cause why the relief should not be granted, and for general relief.
General demurrers on specified grounds, and various special demurrers, were interposed. The trial judge sustained all demurrers, except one special demurrer which was not passed upon. Exceptions are to this order.
One of the grounds of demurrer asserted that any claim against Atlanta West Point Railroad Company by reason of the homicide would be barred by the statute of limitations. Code § 3-1004 requires that injuries to persons be brought within two years after the right of action accrues. The alleged injury occurred November 16, 1947, and the instant proceeding was not brought until December 22, 1950. "An action by a wife to recover damages for the negligent homicide of her husband is an action for an `injury done to the person,' and must be brought within two years after the date of the death of the husband." Atlantic, Valdosta Western R. Co. v. McDilda, 125 Ga. 468 ( 54 S.E. 140, 114 Am. St. 240); Chapman v. Central of Georgia Ry. Co., 20 Ga. App. 251 ( 92 S.E. 1025). Should an action for the homicide now be brought voluntarily by the widow, or in her name under authority of a court order, it would show upon its face that it was barred by the statute. The petition alleges that the widow and the railroad company made a fraudulent settlement of the claim on November 23, 1947, which was more than two years prior to the institution of this suit. There is no allegation that the petitioners did not at that time have knowledge of the alleged fraudulent settlement, and the petition, being strictly construed, would show such knowledge. Under Code § 3-807, the statute of limitations would run from the time of the discovery of the fraud, and more than two years having elapsed since that time, the action would still be barred by the statute.
A court of equity should not, by order, require the filing of a suit which would show by the petition sought to be filed that it is barred by the statute of limitations.
No ruling is made on other grounds of demurrer. The trial court did not err in sustaining the demurrer on grounds ruled upon above.
Judgment affirmed. All the Justices concur.