Swift Specific Co. v. Davis , 76 Ga. 787 ( 1886 )

Blandford, Justice.

The question in this case is, whether §2967 of the Code, which provides that ££ no action for a tort shall abate by the death of either party where the wrong-doer received any benefit from the tort complained of,” applies to actions for libel and slander, and whether the same applies in this case.

1. By the common law and the laws of this state up to the adoption of the Code, when a party to an action for libel or slander died, the action died, and whether it was the intention of the codifiers to change the rule of the common law may be doubted.

The paragraph of the Code quoted is found in chapter 1 of title 8, treating of torts or injuries to persons or property, denominated “ General Principles,” which chapter treats of torts generally, but in which libel or slander is not mentioned. Libel and slander are not mentioned until section 1, article 2, chapter 2, which treats of injuries to reputation, —libel and slander and malicious prosecution, in which no reference is made to the action not abating. Actions of this character are not encouraged by the law, as is evidenced by requiring the action to be brought within twelve months from the time the cause of action originated, and not after; also by not allowing the plaintiff to recover more costs than damages.

2. But admit that §2967 is broad enough to cover libel and slander, and it is very broad, by that section the wrongdoer must receive a benefit from the tort; it must be a benefit flowing from and out of the tort complained of; it must hot be a benefit derived from othex-s not connected with the tort, but it must be a benefit flowing immediately from the injury inflicted, as was the case in 56 Ga., 159. There the wx’ong-doer overflowed the lands of the complainant, thereby doing hixix an injury. The court held that, inasmuch as the wrong-doer was benefited by the tort, in that the raising the water oxr his neighbor’s land (the tort) gave hixn. increased waterpower, the action did not abate by the death of the plaintiff. In that case, the benefit was the immediate result of the injury, but in 'the case now being determined, the benefit,if any, received by the wrong-doer is alleged to be profits derived from the sale of a certain medicine by reason of the publication of the libel. The two cases are diffex’ent; in the one case the benefit was immediate, and in the other it is consequential axxd i'emote. So, whether the section is applicable to cases of libel and slander or not, under the facts of this case, the section did. not prevent the case from abating by the death of the plaintiff, and the court erred in allowing the administrator of the dead person to be made a party.

Judgment reversed.