Bailey v. Wilson
| Decision Date | 14 October 1959 |
| Docket Number | No. 37933,No. 2,37933,2 |
| Citation | 111 S.E.2d 106,100 Ga.App. 405 |
| Parties | Martha E. BAILEY v. Leona S. WILSON |
| Court | Georgia Court of Appeals |
Syllabus by the Court
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 a 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 cause of action for loss of consortium due to the negligent injury of her husband.
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 the 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 prescribed 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 () 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...
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