Bray v. Westinghouse Elec. Corp.

• Decision Date: 01 June 1961
• Docket Number: No. 1,No. 38848,38848,1
• Citation: 103 Ga.App. 783,120 S.E.2d 628
• Parties: S. B. BRAY v. WESTINGHOUSE ELECTRIC CORPORATION et al
• Court: Georgia Court of Appeals

Page 628

120 S.E.2d 628

103 Ga.App. 783

S. B. BRAY v. WESTINGHOUSE ELECTRIC CORPORATION et al.

No. 38848.

Court of Appeals of Georgia, Division No. 1.

June 1, 1961.

Syllabus by the Court

Where the issue of the liability of defendant Westinghouse Electric Corporation for personal injuries to plaintiff was adjudicated in the negative by this court in an action by plaintiff's wife for damages for loss of consortium, the former judgment, although not an estoppel by judgment as to the present action for damages because the parties are different, does constitute a binding precedent, inasmuch as the controlling issue, i. e., the defendant's liability to the plaintiff, has already been adjudicated under substantially similar allegations.

Seneca B. Bray sued the Westinghouse Electric Corp. and Irvin H. McGuire to recover damages for personal injuries alleged to have been caused by the negligence of the defendants. The allegations of the petition are substantially similar to those contained in the petition of plaintiff's wife, Mrs. Seneca B. Bray, in the case of Bray v. Westinghouse Electric Corp. et al., 102 Ga.App. 803, 117 S.E.2d 919. In that case this court affirmed the judgment of the lower court sustaining Westinghouse's general demurrer to her petition for damages for loss of consortinum by reason of the same injuries to her husband for which he now sues as plaintiff. In the case sub judice defendant Westinghouse Electric Corp. filed general demurrers to the petition which was redrafted after several amendments were filed. The amended petition incorporated the allegations of his wife's petition in her action for damages for loss of consortium along with certain substitutions and additions to the following effect: The allegation that neither the plaintiff nor defendant McGuire had ever loaded such pipe before, that McGuire was not a common laborer, but a subprincipal who was not employed to drive a fork lift truck; the allegation that the wooden standards were purchased and added to the cart by defendant Westinghouse, which did not test them, and that the standards did not conform to manufacturers' and safety regulations; substitution of the term 'instructed' for the term 'told' and more details as to the shifting and falling of pipes onto the plaintiff's leg; substitution of the term 'subprincipal' for the terms 'servant' and 'employee' in reference to defendant McGuire; amplification of defendant McGuire's duties and scope of employment with defendant Westinghouse. The court sustained defendant's renewed general demurrer and dismissed the action to which judgment plaintiff excepted.

Guy B. Scott, Jr., Athens, for plaintiff in error.

Erwin, birchmore & Epting, Howell C. Erwin, Jr., Athens, for defendants in error.

FELTON, Chief Judge.

This court having previously decided the issue of defendant Westinghouse's liability to plaintiff by upholding the lower court's judgment sustaining Westinghouse's general demurrer to the petition of plaintiff's wife seeking damages for loss of consortium, (See: Bray v. Westinghouse Electric Corp. et al., 102 Ga.App. 803, 117 S.E.2d 919), the sole question before us is whether there are any allegations in plaintiff's petition which would prevent it from being controlled by the precedent of the former decision. Our holding in that case was based upon the finding that the sole proximate cause of the injuries was the negligence of a fellow-servant of Seneca B. Bray. Plaintiff's redrawn petition attempts to show, in reference to this issue, that defendant McGuire was acting in the capacity of a subprincipal of defendant Westinghouse at the time of the injury to plaintiff. The term 'subprincipal' was substituted for the...