Opinion
33935.
DECIDED FEBRUARY 19, 1952. REHEARING DENIED MARCH 7, 1952.
Action for damages; from Cobb Superior Court — Judge Brooke. November 21, 1951.
G. Seals Aiken, for plaintiff.
W. Neal Baird, Neely, Marshall Greene, Ferdinand Buckley, for defendants.
Where a single alleged tort, in the commission of which by the defendants both the plaintiff and his wife are injured, gives rise to several elements of damages in favor of the husband, such as damages for the loss of the wife's services, damages for the hospital bills expended, and damages because of the personal injuries sustained by the plaintiff — in such a situation there is but a single cause of action.
DECIDED FEBRUARY 19, 1952 — REHEARING DENIED MARCH 7, 1952.
J. A. Kelly filed suit for damages, in Cobb Superior Court, against Maurice McCoy and Rex D. Gardner, in which he sought to recover of the defendants on account of personal injuries sustained by his wife by reason of the defendants' negligence, for the loss of his wife's services and for the doctors' and hospital bills incurred by reason of said injuries to her, same being suit No. 3739. On the same day, the plaintiff filed in said court suit No. 3740, same being against the two above-named persons as defendants, seeking to recover damages on account of certain personal injuries which he sustained as a result of the negligence of the defendants in the transaction in which his wife was injured, as alleged in said suit No. 3739, as well as for medical expenses incurred in the treatment of his injuries. It appeared from the allegations of these two petitions that the subject matter involved was the same automobile collision; that the defendant, Maurice McCoy, is a minor 17 years old; that the husband was driving his car, in which his wife was an invited guest, in a southerly direction along Ivy Street in Atlanta; that, as he approached where Ivy and Ellis Streets intersect, he had to wait until the red signal light at this intersection turned green, and when it did he drove on across the intersection, when he saw an automobile, on his right, coming down the hill on Ellis Street at a reckless and illegal speed of 35 miles an hour, and which car was out of control, and headed directly towards the right side of the plaintiff's car, where his wife was seated; that, although the plaintiff had the right of way, and was traveling at the moderate speed of ten miles an hour, he immediately accelerated his speed and turned to the left in an effort to avoid being struck by the defendants' car coming downhill at a rapid speed and out of control, yet said car struck the car of the plaintiff, injuring both the plaintiff and his wife. It was set up in the petition that the automobile, which struck the plaintiff's car and inflicted the injuries on the plaintiff and on his wife and caused the damages sued for in the two suits by the plaintiff against the defendants, was being operated at the time by the defendant McCoy and was owned by the defendant Gardner; that the car which was at the time being driven by McCoy, at the instance and with the knowledge of Gardner, was in a defective condition, in that it was not equipped with sufficient, adequate, and proper brakes, not having a master cylinder on the brakes, and that the hand brakes would not function and Gardner knew this when he permitted McCoy to operate the car; and that the injuries received by the plaintiff and his wife were the direct and proximate result of the negligence of the defendants in various particulars, as set forth in the petition; and that the defendant Gardner is liable because he entrusted this car to McCoy knowing it was in the above explained condition and would probably result in injury and damage to the plaintiff and to his wife or to some other person or persons, and because said automobile, owned by Gardner, was a family-purpose car and was being operated on this occasion by McCoy, who was a member of the family of Gardner, and also a minor, and brother-in-law of Gardner, and yet he allowed McCoy to drive his said car, knowing of its defective condition due to the insufficient, inadequate, and worthless brakes.
The record discloses that on January 15, 1951, Mrs. Elizabeth K. McCoy, mother of Maurice McCoy, was appointed by the court as guardian ad litem.
Thereupon, the defendant Gardner, on February 10, 1951, interposed to said suit No. 3740, his plea of lis pendens, and alleged that, on or about January 11, 1951, the plaintiff filed a suit in said court, the same having jurisdiction of the person and the subject matter thereof, and the action set out in said petition is between the same parties and for the same cause of action as in the instant case, and purports to show a valid cause of action, and this defendant was duly served with the first-mentioned petition and process, and the same is still pending in this court.
Thereafter, on February 27, 1951, the defendant Maurice McCoy, through Mrs. Elizabeth McCoy, as guardian ad litem, filed to said suit No. 3740, a plea of lis pendens and alleged as above set forth.
The defendants, in each of the pleas, prayed that the instant petition or action (case No. 3740) abate and be dismissed.
It appears from the record and the briefs of counsel that the plaintiff demurred to each of the lis pendens pleas interposed by the two defendants, separately filed upon different dates. However, the record does not contain these demurrers, and they were not specified by the plaintiff in error as part of the record to be transmitted by the Clerk of Cobb Superior Court to this court. In the record, however, it appears that on November 21, 1951, the trial judge overruled each of the demurrers of the plaintiff to the two pleas.
In the bill of exceptions the plaintiff in error assigns error on the order of the court overruling his demurrers to the pleas of lis pendens, as being contrary to law upon each and every ground set out in the demurrers.
The plaintiff then filed his answer to each of said pleas, denying the allegations of paragraph 1 thereof, and, answering paragraph 2, set up that he cannot for lack of sufficient information say when the defendant was served with the first-mentioned petition and process, and further alleges that he did not file two suits against the defendants in this court, but that they are separate and distinct causes of action, according to his information and belief, and he states that the said two suits filed by him are still pending to the best of his knowledge and belief. The plaintiff prays for judgment on the plea in his favor, and against the defendant in each plea. The record shows that the plaintiff filed his answer to the plea of lis pendens of Gardner on February 15, 1951, and to the plea of the defendant McCoy on March 3, 1951.
On November 21, 1951, after overruling the demurrers of the plaintiff to the plea of lis pendens interposed by the defendant Rex D. Gardner, and it being stipulated that case No. 3739 in Cobb Superior Court would be considered as having been introduced in evidence and was still pending, and there being a further stipulation that the court would try said plea and determine all issues of law and fact without the intervention of a jury — the court, after considering the petition in case No. 3739 and the petition in the present case, No. 3740, found in favor of the plea of lis pendens, and case No. 3740 was abated and dismissed. On the same day the trial judge rendered a similar order and judgment as to the plea of lis pendens filed by Maurice McCoy, by guardian ad litem.
The plaintiff in error, in the bill of exceptions, set up that each of the foregoing orders sustaining the pleas of lis pendens and abating and dismissing case No. 3740 is error, being contrary to law.
It is a fundamental principle prevailing in this jurisdiction that one tortious act gives rise to but one cause of action, regardless of the elements of damage for which the tortfeasor may be liable to the plaintiff; and it was under this general rule that the trial judge sustained the pleas of lis pendens, the plaintiff seeking to recover for the loss of his wife's services and for the medical expenses incurred in having her injuries treated, both being elements of damages resulting from the alleged tortious act of the defendants in the operation of the automobile which ran into and struck the plaintiff's car, thereby inflicting personal injuries on the plaintiff, as well as upon his wife, and for which personal injuries he likewise seeks to hold the defendants liable, and to recover, which case No. 3739 was brought in said court by the plaintiff against the defendants. See Georgia Ry. c. Co. v. Endsley, 167 Ga. 439 ( 145 S.E. 851); Silvertooth v. Shallenberger, 49 Ga. App. 133 ( 174 S.E. 365). It is our opinion that the instant case falls squarely within the general rule, and does not come within any exception thereto. The case of Southern Ry. Co. v. King, 160 Fed. 332, is not at all applicable to the situation which confronts the court here. In that case, the Federal Court said: "Where injuries to the person and the physical property of the injured party grow out of a single tort, then, and in that event, the tort to the person and to the property constitutes a single cause of action and, as previously suggested, the same should be presented in a single suit. This is the English view, and the holding is the same in all of the American courts with one exception." Damages to the husband for the loss of his wife's services on account of the defendants' negligence in the operation of the automobile which collided with the plaintiff's automobile, injuring both his wife and himself, resulting from his wife's personal injuries, and consequently her inability to perform her marital duties and services to which the husband is entitled, and damages because of the medical expenses incurred by reason of such injuries so caused by the defendants' alleged negligent operation of his said car, are merely elements of damages on account of the alleged negligence of the defendants along with the damages sustained by the plaintiff as a result of his own personal injuries resulting from such negligent conduct of the defendants; and this is not a case where the damages sought and the injury claimed by the plaintiff are sustained by the plaintiff in a different capacity, as if sustained by different persons. This court has directly ruled in the Shallenberger case, supra, that in such a situation, the plaintiff has suffered damage to his property rights. A husband has a property right in the services of his wife, and any act wrongfully depriving him thereof damages his property right. The husband is liable to one furnishing medical attention to his injured wife, such as for hospitalization, doctors' bills and medicines, and if another commits a tort, causing a husband to suffer damages, he is entitled to recover. He does not recover these damages in a different capacity, such as trustee for the minor children of their deceased father, as was the situation in Southern Ry. Co. v. King, 160 Fed. 332 (supra).
The trial judge properly sustained the pleas of lis pendens, and abated and then dismissed case No. 3740.
Judgment affirmed. MacIntyre, P.J., and Townsend, J., concur.