Opinion
64406.
DECIDED NOVEMBER 16, 1982. REHEARING DENIED DECEMBER 8, 1982.
Action for damages. Carroll State Court. Before Judge Brown.
John M. Strain, for appellant.
Richard B. Eason, Jr., Carolyn J. Kennedy, Noel H. Benedict, for appellee.
Annie Winkles, wife of appellant, was injured in an automobile collision involving appellee. Mrs. Winkles filed a suit for damages against appellee, and appellant filed a separate action against appellee for loss of consortium. Mrs. Winkles' case against appellee was tried, and the jury rendered a verdict in favor of appellee. Upon appellee's motion, the trial court then awarded summary judgment to appellee in the case at bar, concluding that appellant's suit was derivative of his wife's cause of action in which the issue of appellee's liability had been tried. This appeal followed.
We are bound by the decision of this court in Stapleton v. Palmore, 162 Ga. App. 525, 527 ( 291 S.E.2d 445): "The defendant in the case sub judice was not entitled to summary judgment against the [husband] in [his] loss of consortium suit merely because a previous jury in a prior trial had determined the defendant was not liable for the [wife's] injury. [Cits.]" The trial court erred in granting appellee's motion for summary judgment. Judgment reversed. Quillian, C. J., and Carley, J., concur.
DECIDED NOVEMBER 16, 1982 — REHEARING DENIED DECEMBER 8, 1982 — CERT. APPLIED FOR.
ON MOTION FOR REHEARING.
Shortly after release of our decision in this case, the Supreme Court affirmed this court's decision in Stapleton v. Palmore, supra. Stapleton v. Palmore, 250 Ga. 259 ( 297 S.E.2d 270). We have reviewed this case in light of the Supreme Court's recent decision and conclude that Stapleton demands the reversal of the order granting appellee's motion for summary judgment.
Motion for rehearing denied.