DECIDED OCTOBER 14, 1959.
Action for damages. Jeff Davis Superior Court. Before Judge Thomas. July 29, 1959.
Sharpe Sharpe, T. Ross Sharpe, T. Malone Sharpe, for plaintiff in error.
J. W. Story, J. Laddie Boatwright, contra.
1. Questions of negligence, whose negligence and what negligence are particularly for the determination of the jury.
2. In order to raise the question of jurisdiction, a proper plea must be made thereto. Such right is lost when one appears in the trial court without making proper plea to the jurisdiction and pleads the merits of the case.
3. A suit brought by a wife for injuries to her husband, his earnings, earning capacity, and plea for recovery for pain and suffering cannot be maintained. Such suit is in the province of the husband only.
4. A wife has a cause of action for loss of consortium due to the negligent injury of her husband.
DECIDED OCTOBER 14, 1959.
Mrs. Leona S. Wilson brought suit against Martha Elaine Bailey, alleging (1) that the defendant had damaged her in the sum of at least $100,000; (2 by amendment) that on January 16, 1959, at about 9:30 to 11:30 p. m., the plaintiff's husband was operating a certain described pickup truck, properly lighted, being driven in a reasonable and prudent manner at a speed of not more than 45 miles per hour, in the proper lane of travel; (3) that the defendant was driving a described car at the same time and place, traveling at least 80 miles an hour; (4) that the defendant drove her car into and against the rear of the truck with great force and impact; (5) that in addition to the high speed, the defendant was driving without maintaining control over her car while overtaking and passing the truck; failed to sound a horn or give other signal; that the highway view was unobstructed for more than one-half mile; that the defendant failed to have due regard for traffic and the condition of the highway; failed to yield the right of way to the vehicle operated by the plaintiff's husband who was observed or could have been observed if the defendant had been in the exercise of reasonable diligence; (6) that the defendant did not maintain sufficient lighting for the time and place; (7) that the plaintiff and her husband had one minor daughter; (8) that plaintiff's husband was totally and permanently disabled and was rendered physically unable to earn money for the balance of his natural life; that the minor daughter and the plaintiff are totally dependent on him for support, etc.; (9) that the highway at the place where the collision occurred is approximately 21 feet wide, with shoulders 7 feet wide; (10) that he received certain described injuries; (11) that prior to the collision he was 42 years old, in good health, and earning $4,000 a year; (12) that his life expectancy is 26.34 years; (13) that his injuries were a direct and proximate result of the defendant's negligence in driving her car into the truck, thus depriving her and the minor child of support, alleging $50,000 to be recoverable in this respect; (14) that she has been deprived of 90% of all elements of consortium because of the injuries, alleging $50,000 to be recoverable in this respect; (15) that her husband is a bed-ridden patient in a veterans' hospital because of the injuries caused by the negligent acts of the defendant; that she has had to move to another city to be near her hospitalized husband; (16) that certain described negligent acts of the defendant caused the condition of the plaintiff's husband; that the plaintiff have judgment against the defendant for the sum of $100,000, plus costs, etc.
The defendant demurred generally to the petition, as amended, and demurred specially as to (1) jurisdiction; (2) (this ground is expressly abandoned by the defendant); (3) that the allegations of paragraph 5 (which we have set out herein above) are inconsistent; that paragraph 5 is improperly pleaded; (4) that paragraph 6 is improperly pleaded; (5) that paragraph 7 should be stricken because the number of children involved makes no difference in this suit inasmuch as the suit is brought on behalf of the wife and not the child or children; (6) that paragraph 8 should be stricken because a wife has no right to recover for loss of earnings, inasmuch as the loss of consortium only is involved; that the plaintiff and the child are improperly joined in the pleadings in paragraph 8; (7) that certain parts of paragraph 10 should be stricken because the suit is for loss of consortium and all reference to the pain and suffering of the husband has no proper place in the suit; (8) that paragraph 11 should be stricken because of loss of earnings is set out; that the suit is for loss of consortium; that the child has no right to recovery; (9) that paragraph 12 should be stricken because the life expectancy of the plaintiff's husband has nothing to do with the plaintiff's right of recovery; (10) that paragraph 13 should be stricken because it attempts to seek recovery for personal injuries to the plaintiff's husband, such being the right of the husband who is still in life; (11) that paragraph 14 be stricken because it seeks to recover for services of her mate, etc., and that being deprived of 90% of the consortium rights would reduce the amount of damages sought for loss of consortium; (12) that paragraph 15 should be stricken because the allegations therein contained have nothing to do with the loss of consortium; (13) that defendant moves to strike all causes of action because same is multifarious and an attempt to incorporate several causes of action in one suit; (14) that under the pleadings only one recovery is alleged, that of loss of consortium, and that many other items of recovery are alleged; (15) that paragraph 16 should be stricken as to the part with reference to yielding the right of way; since the vehicles were traveling in the same direction, yielding the right of way was not involved.
The court overruled the general and special demurrers on each and every ground. It is on this judgment that the case is here for review.
1. The court did not err in overruling the general demurrers to the petition.
2. Questions of negligence, whose negligence and what negligence are questions particularly for the determination of the jury.
3. (a) Special demurrer numbered 1 is not meritorious, particularly for the reason that the defendant appeared in the trial court and pleaded to the merits of the case, making no proper plea to the jurisdiction.
(b) The trial court erred in overruling special demurrer numbered 10 going to paragraph 13 of the petition, under the ruling in Brown v. Georgia-Tennessee Coaches, 88 Ga. App. 519 ( 77 S.E.2d 24). (That case was a full-bench decision carried to the Supreme Court by writ of certiorari, the Supreme Court refusing to entertain the certiorari). In that case (p. 532), this court said: "Inasmuch as this is the first time this kind of a right of recovery has been allowed, we deem it advisable to go further and say that in such an action as this, whether or not the right to recover for the husband's loss of earnings and earning capacity is theoretically a right common to both the husband and the wife, we hold that the right to recover for the loss of these items is primarily in the husband and, to avoid double recovery for such damages, hold that the right of recovery for these items must be confined to the husband alone, the wife having the right to recover for other losses for which the husband has no cause of action." All other special demurrers going to this same point were erroneously overruled.
The Brown case (p. 532) also held that a wife can recover for loss of consortium in the following language: "It is . . . the opinion of this court that in light of the existing law of this jurisdiction, in the light of the specious and fallacious reasoning of those cases from other jurisdictions which have decided the question, and in light of the demonstrable desirability of the rule under the circumstances, a wife has a cause of action for loss of consortium due to a negligent injury to her husband. This result poses no problems in ascertaining the wife's damages. Simple mathematics will suffice to set the proper quantum. For inasmuch as it is our opinion that the husband in most cases does recover for any impairment of his duty to support his wife, and, since a compensable element of damages must be subject to measure, it is a simple matter to determine the damages to the wife's consortium in exactly the same way as those of the husband are measured in a similar action and subtract therefrom the value of any impairment of his duty of support."
All rulings on special demurrers as to earnings of the husband, his earning capacity, and his pain and suffering, were erroneous, because such recovery is within the province of the husband only. Those special demurrers should have been sustained. The court did not err in overruling any of the special demurrers except those covered specifically or en masse herein above.
Judgment affirmed in part and reversed in part. Townsend and Carlisle, JJ., concur.