Maryland Casualty Co. v. Lanham

LuMPKiN, J. (After stating the facts.) 1. “Infancy is no defense to an action for a tort, provided the defendant has arrived at those years of discretion and accountability prescribed by this code for criminal offenses.” Civil Code, §3904. As to the liability of an -infant for torts, see also 38 Am. Law Rev. 371. This rule refers to the liability of an infant for his torts, and not to the proper manner of bringing suit against him therefor. So likewise the rule that the exemption of an infant generally from liability, on his contracts is a personal privilege (Civil Code, §3649) does not affect the proper method of suing and serving an infant. The rule was long since announced that a suit brpught against a minor should be defended in his own name, but that a guardian ad litem should tbe appointed for him; and that this power of appointment was one incident to the court. Nicholson v. Wilborn, 13 Ga. 467; Oliver v. McDuffie, 28 Ga. 522; Jack v. Davis, 29 Ga. 219; Kilpatrick v. Strozier, 67 Ga. 247; Burnett v. Summerlin, 110 Ga. 349. Under the act of 1854 (Civil Code, §§4863, 4864), authorizing the judges of the superior courts in chambers, upon petition, to change trustees or order a sale of trust property, etc., and providing that if minors were interested and had no guardians, [861] guardians ad litem should be appointed and notified before the cause proceeded, it became the practice, not to notify the infant, but to appoint a guardian ad litem to represent him; and this was held to be sufficient until the act of 1876 was passed, which provided differently. Harvey v. Cubbedge, 75 Ga. 792; Adams v. Franklin, 82 Ga. 168. That act required personal service on the minor (Acts 1876, p. 103). As amended by the act of 1879 (Acts 1878-79, p. 140), it is codified in the Civil Code, §4987. By that section it is provided that if the minor is under the age of fourteen years, service is to be perfected by delivering a copy of the proceedings to such minor personally; and in cases where there is a statutory or testamentary guardian or trustee representing the interest of the minor to be affected by the legal proceeding, service as usual on such guardian or trustee shall be sufficient to bind the minor’s interest in their control, to be affected by said proceedings; and that if the minor is over fourteen years of age, service may be-made by delivering to him personally such copy. It then declares, “When the returns of such service are made to the proper court, and order ta,ken to appoint said minor a guardian ad litem, and such guardian ad litem agrees to serve, all of which must be shown in the proceedings of the court, then said minor shall be considered a party to said proceedings.” Except where expressly otherwise provided in this statute, there'must be personal service and a guardian ad litem must be appointed; and it is only when this shall have been done and made to appear in the proceedings of the court that “then said minor shall be considered' a party to said proceedings.” In the present case the age of the minor does not appear, nor was any guardian ad litem appointed, though his minority was alleged. The case could not therefore legally proceed to judgment against him. The decision in Bartlett v. Batts, 14 Ga. 539, that a suit commenced and prosecuted by an infant alone without a next friend is not absolutely void, but, though defective, is cured by verdict, does not conflict with the.ruling here made. See Thorp v. Minor, 109 N. C. 152. 2, 3. While the plaintiff may have paid the amount for which it conceded that it was liable, under its insurance policy, to the owners of the property damaged, and have become subrogated to their rights as against the tort-feasor, as'against him this did not liquidate the amount of his liability, if any. That the company expended a [862] certain amount in replacing the glass would not be conclusive upon the defendant that the amount of such expenditure was necessary or proper. Under the Civil Code, §5073, where damages are not liquidated and a judgment by default is rendered, the plaintiff is required to introduce evidence and establish the amount of such damages. By the act of September 27, 1883 (Acts 1882-3, p. 538, §9), it is provided that in the city court of Floyd county the trial of all issues of fact “shall be by the court, without a jury, except where either party in a civil case, or the defendant in a criminal case, shall, in writing, demand a trial by jury.” 1 In the absence of anything appearing to the contrary, this court would probably presume that the judge acted on proper evidence. 4. In an action for a tort, where there is some fixed rule for measuring damages, the jury may, under proper circumstances, increase the amount by adding interest; but the verdict should be for one aggregate sum, and should not find an amount as principal and a separate amount as interest; nor should the verdict exceed the sum sued for. Central Ry. Co. v. Hall, 124 Ga. 322. Judgment affirmed. All the Justices concur.