Opinion
37068.
DECIDED APRIL 9, 1958.
Tort; child's action for mother's death. Bartow Superior Court. Before Judge Mitchell. December 27, 1957.
Jefferson L. Davis, J. R. Cullens, for plaintiff in error.
Henry A. Keever, William A. Ingram, contra.
1. Since no cause of action would have existed against the decedent had he lived, no cause of action survived as against his personal representative by virtue of Code (Ann.) § 3-505.
2. Where no cause of action is alleged against the only resident defendant, the court does not have jurisdiction of a nonresident joint defendant.
DECIDED APRIL 9, 1958.
Doris Earline Wrinkle, by and through next friend, sued Jack Geurin, as administrator of the estate of Raymond S. Harris, Jr., and Roy M. Rampley, Jr., for the death of her mother. The defendant Rampley was joined as a nonresident joint defendant. Raymond S. Harris, Jr., was the plaintiff's stepfather. On March 25, 1956, Harris was driving an automobile belonging to the plaintiff's mother and in which the plaintiff's mother was riding as a passenger along a public highway in the State. The automobile being driven by Harris collided with an automobile owned and being driven by the defendant Rampley. The stepfather Harris was killed in the collision and the plaintiff's mother died four days later as a result of the injuries received in the collision. The plaintiff alleges that her mother's death was caused by the joint negligence of Harris and the defendant Rampley.
The court sustained the general demurrer of the defendant Jack Geurin, as administrator of the estate of Raymond S. Harris, Jr., and dismissed the action as to that defendant. The court then dismissed the action as to the defendant Rampley on the ground that since the action had been dismissed as to the resident joint defendant, the court was without jurisdiction of the defendant Rampley. The plaintiff excepts to these judgments.
1. The defendant, Jack Geurin, was sued as the personal representative of Raymond S. Harris, Jr., by virtue of Code § 3-505 as amended by Ga. L. 1952, p. 224. That Code section provides in part, "The personal representative of such wrongdoer . . . shall be subject to suit just as the wrongdoer himself would have been during his life." (Emphasis supplied.) It follows that if the plaintiff could not have maintained the action against the decedent during his life, the action cannot be maintained against his personal representative. See Thompson v. Watson, 186 Ga. 396, 400 ( 197 S.E. 774, 117 A.L.R. 484). Had Raymond S. Harris, Jr., survived, the plaintiff could not have maintained an action against him. Code § 105-1306 provides that the husband and child or children must sue jointly and not separately for the death of the wife and mother. Where the father is living, the child or children cannot sue for the death of the mother without making the husband a party plaintiff. See Thompson v. Watson, supra. See also Happy Valley Farms, Inc. v. Wilson, 192 Ga. 830, 835 ( 16 S.E.2d 720). Since Raymond S. Harris, Jr., had he survived, could not have been a plaintiff and defendant in the same action, no cause of action arose against him and, therefore, none survived as against his personal representative by virtue of Code (Ann.) § 3-505.
It is not necessary to decide whether the petition was subject to the general demurrer of Jack Geurin, as administrator of the estate of Raymond S. Harris, Jr., for other reasons.
2. Since no cause of action is alleged against the only resident defendant, the court did not have jurisdiction of the nonresident defendant Roy M. Rampley, Jr. Stroud v. Doolittle, 213 Ga. 32 ( 96 S.E.2d 876); Young v. Koger, 94 Ga. App. 524 ( 95 S.E.2d 385).
The court did not err in sustaining the general demurrer of Jack Geurin, as administrator of the estate of Raymond S. Harris, Jr., and in dismissing the action as to that defendant, and did not err in dismissing the action as to the defendant Roy M. Rampley, Jr.
Judgment affirmed. Quillian and Nichols, JJ., concur.