Opinion
S91G0411.
DECIDED NOVEMBER 1, 1991. RECONSIDERATION DENIED NOVEMBER 22, 1991.
Gorby, Reeves, Moraitakis Whiteman, Michael J. Gorby, Stephanie L. Scheier, for appellant.
Lefkoff, Duncan, Grimes Dermer, John R. Grimes, for appellee.
Certiorari was granted in this case to view, in light of Stenger v. Grimes, 260 Ga. 838 ( 400 S.E.2d 318) (1991), the Court of Appeals' opinion reversing the grant of a summary judgment to appellant in the trial court. We affirm.
When this case and the wrongful death case of Stiltjes v. Ridco Exterminating Co., 192 Ga. App. 778 ( 386 S.E.2d 696) (1989), came on to be heard before the trial court, defendant Ridco moved to join these two cases. The trial judge denied Ridco's motion holding that the two cases were "separate and distinct causes of action which seek different damages." After the wrongful death case, Stiltjes, supra, had been disposed of and this case came on for trial, the trial court, contrary to its original ruling, granted summary judgment to defendant Ridco. The Court of Appeals reversed the trial court, holding for all practical purposes, the same as the trial court did in denying the appellant's motion to consolidate.
When the trial court denied the motion to consolidate, Stenger, supra, had not been decided by this Court. The Stenger case would have controlled had the trial court had the benefit of it at the time of its initial ruling. However, it did not and it would be unfair to deny the appellant her day in court because Stenger had not been decided at that time. Substantial justice dictates that Mrs. Stiltjes be granted a new trial in her present case.
Judgment affirmed. All the Justices concur, except Bell, Hunt, and Fletcher, JJ., who concur in the judgment only.