Brown v. Georgia-Tennessee Coaches, Inc.

• Decision Date: 16 June 1953
• Docket Number: No. 1,GEORGIA--TENNESSEE,No. 34564,34564,1
• Citation: 77 S.E.2d 24,88 Ga.App. 519
• Parties: BROWN v.COACHES, Inc
• Court: Georgia Court of Appeals

Page 24

77 S.E.2d 24

88 Ga.App. 519

BROWN v. GEORGIA--TENNESSEE COACHES, Inc.

No. 34564.

Court of Appeals of Georgia, Division No. 1.

June 16, 1953.

Rehearing Denied July 14, 1953.

Syllabus by the Court.

The petition stated a cause of action by the plaintiff for the loss of the consortium of her husband occasioned by personal injuries to him, allegedly brought about by the negligence of the defendant, and the court erred in sustaining the general demurrer to the petition and in dismissing the action.

Mrs. Emma Brown sued Georgia--Tennessee Coaches, Incorporated, for damages to her in the alleged loss of the consortium and companionship of her husband by reason of the alleged personal injuries to him caused by the alleged negligence of the defendant. The court sustained the general demurrer to the petition, and the plaintiff excepted.

Wade H. Leonard, Rossville, for plaintiff in error.

Pittman, Hodge & Kinney, Dalton, for defendant in error.

FELTON, Judge.

In McDade v. West, 80 Ga.App. 481, 484, 56 S.E.2d 299, the writer was privileged to express the views of the three members of this court who were in favor of upholding the right of a wife to recover for the loss of her husband's consortium brought about by personal injuries to him by another's negligence.

The defendant in error contends that Glenn v. Western Union Telegraph Co., 1 Ga.App. 821, 58 S.E. 83, is controlling. The Glenn case shows that this court considered itself bound by the principle announced in Chapman v. Western Union Telegraph Co., 88 Ga. 763, 15 S.E. 901, 17 L.R.A. 430, and other cases wherein recovery was denied for other reasons. The question involved here was not mentioned or discussed in the Chapman or Glenn cases. Since the decision in McDade v. West, supra, was handed down, the United States Court of Appeals, District of Columbia Circuit, in Hitaffer v. Argonne Company, Inc., 87 U.S.App.D.C. 57, 183 F.2d 811, 812, 23 A.L.R.2d 1366, in a very illuminating and powerful opinion has recognized such a right of recovery by a wife. For the benefit of the bar and public in general we quote in full the opinion of the court on this point, putting the citations in the opinion instead of in footnotes.

'Although this is the first time this question has been presented to this court, we are not unaware of the unanimity of authority elsewhere denying the wife recovery under these circumstances. (Tyler v. Brown-Service Funeral Homes Co., 1948, 250 Ala. 295, 34 So.2d 203; Giggey v. Gallagher Transp. Co., 1937, 101 Colo. 258, 72 P.2d 1100; Marri v. Stamford St. R. Co., 1911, 84 Conn. 9, 78 A. 582, 33 L.R.A.,N.S., 1042, Ann.Cas.1912B, 1120; Sobolewski v. German, 1924, 2 W.W.Harr. 540, 32 Del. 540, 127 A. 49; McDade v. West, 1949, 80 Ga.App. 481, 56 S.E.2d 299; Boden v. Del-Mar Garage, 1933, 205 Ind. 59, 185 N.E. 860; Brown v. Kistleman, 1912, 177 Ind. 692, 98 N.E. 631, 40 L.R.A.,N.S., 236; Cravens v. Louisville & N. R. Co., 1922, 195 Ky. 257, 242 S.W. 628; Emerson v. Taylor, 1918, 133 Md. 192, 104 A. 538, 5 A.L.R. 1045; Gearing v. Berkson, 1916, 223 Mass. 257, 111 N.E. 785, L.R.A.1916D, 1006; Bolger v. Boston Elevated R. R. Co., 1910, 205 Mass. 420, 91 N.E. 389; Feneff v. N. Y. Cent. & H. R. R. Co., 1909, 203 Mass. 278, 89 N.E. 436, 24 L.R.A.,N.S., 1024, 133 Am.St.Rep. 291; Harker v. Bushouse, 1931, 254 Mich. 187, 236 N.W. 222; Eschenbach v. Benjamin, 1935, 195 Minn. 378, 263 N.W. 154; Nash v. Mobile & O. R. Co., 1928, 149 Miss. 823, 116 So. 100, 59 A.L.R. 676; Bernhardt v. Perry, 1919, 276 Mo. 612, 208 S.W. 462, 13 A.L.R. 1320; Gambino v. Mfgrs'. Coal & Coke Co., 1913, 175 Mo.App. 653, 158 S.W. 77; Stout v. Kansas City Term. Ry. Co., 1913, 172 Mo.App. 113, 157 S.W. 1019; Tobiassen v. Polley, 1921, 96 N.J.L. 66, 114 A. 153; Maloy v. Foster, 1945, 169 Misc. 964, 8 N.Y.S.2d 608; Landwehr v. Barbas, 1934, 241 App.Div. 769, 270 N.Y.S. 534; Goldman v. Cohen, 1900, 30 Misc. 336, 63 N.Y.S. 459; Hinnant v. Tide Water Power Co., 1925, 189 N.C. 120, 126 S.E. 307 ; McDaniel v. Trent Mills, 1929, 197 N.C. 342, 148 S.E. 440; Helmstetler v. Duke Power Co., 1945, 224 N.C. 821, 32 S.E.2d 611; Smith v. Nicholas Bldg. Co., 1915, 93 Ohio St. 101, 112 N.E. 204, L.R.A.1916E, 700, Ann.Cas.1918D, 206; Howard v. Verdigris Val. Elec. Co-op., 1949 , 207 P.2d 784; Sheard v. Oregon Elec. Ry. Co., 1931, 137 Or. 341, 2 P.2d 916; Kosciolek v. Portland Ry., Light & Power Co., 1916, 81 Or. 517, 160 P. 132.) As a Matter of fact we have found only one case in which the action was allowed (Hipp v. E. I. Dupont de Nemours & Co., 1921, 182 N.C. 9, 108 S.E. 318, 18 A.L.R. 873), and that authority has since been effectively overruled. (Hinnant v. Tide Water Power Co.; McDaniel v. Trent Mills; Helmstetler v. Duke Power Co., supra). But after a careful examination of these cases we remain unconvinced that the rule which they have laid down should be followed in the District of Columbia. On the contrary, after piercing the thin veils of reasoning employed to sustain the rule, we have been unable to disclose any substantial rationale on which we would be willing to predicate a denial of a wife's action for loss of consortium due to a negligent injury to her husband.

'Analysis of the cases in opposition to the position which we are taking in this opinion will reveal that the synthesizations which follow are fairly representative of the sundry reasons assigned for denying the wife a right of recovery.

'One group of cases base their results on the theory that although in the abstract the term 'consortium' contains, in addition to material services, elements of companionship, love, felicity, and sexual relations, in cases of injury to the consortium resulting from negligence the material services are the predominant factor for which compensation is given. (See, e. g., Marri v. Stamford St. R. Co., supra). From this point they variously argue: (1) That since the wife has no right as such to her husband's services, she has no cause of action, although, of course, the husband, having always been entitled to his wife's services, still has a right of action (Boden v. Del-Mar Garage; Brown v. Kistleman; Stout v. Kansas City Term. Ry. Co., supra); (2) That the Emancipation Acts (Legislation relieving married women from their common law disabilities shall be referred to as 'Emancipation Acts'. For the applicable statute in the District of Columbia, see D.C. Code 1940, § 30-208), having given a wife a right to the fruits of her own services, have placed the husband in the same position as the wife in number (1) so that neither may bring an action (Marri v. Stamford St. R. Co.; Bolger v. Boston Elevated R. R. Co.; Harker v. Bushouse; Helmstetler v. Duke Power Co., supra), except that a husband may recover for monies actually expended. (See, e. g., Helmstetler v. Duke Power Co., supra.) The difficulty with adhering to these authorities is that they sound in the false premise that in these actions the loss of services is the predominant factor. This distinction lacks precedent. (See, Guevin v. Manchester St. Ry., 1916, 78 N.H. 289, 99 A. 298, L.R.A.1917C, 410; Lippman, The Breakdown on Consortium, 30 Col.L. Rev. 651, 667 (1930); 9 Ind.L.J. 182, 183 (1933).) It is nothing more than an arbitrary separation of the various elements of consortium devised to circumvent the logic of allowing the wife such an action. The development of this fiction has been attributed to the use of words.

"Redundancy, in common law pleading is familiar to all lawyers. Thus when pleading alleged loss of services, conjugal affection, companionship, etc., no distinct functions were intended. It is the same kind of verbiage that we still use in deeds, wills and pleadings. On this, however, has been postulated an absurd division of consortium into services on the one hand and conjugal affection, etc., on the other. The cases show that this separation is arbitrary and, in the main, fictitious.' (Lippman, supra, at p. 668.)

'Consortium, although it embraces within its ambit of meaning the wife's material services, also includes love, affection, companionship, sexual relations, etc., all welded into a conceptualistic unity. And, although loss of one or the other of these elements may be greater in the case of any one of the several types of invasions from which consortium may be injured, there can be no rational basis for holding that in negligent invasions suability depends on whether there is a loss of services. It is not the fact that one or the other of the elements of consortium is injured in a particular invasion that controls the type of action which may be brought but rather that the consortium as such has been injured at all. Hence we are constrained to reject the cases which refuse to allow the wife to sue in these actions for the reason that we are unable to accept the premise. We likewise reject those cases which go one step further in disallowing the husband such an action for the further reason that he has always been allowed to sue for loss of his consortium due to negligence in this jurisdiction.

'Another group of cases which similarly appear to place principal emphasis on the element of services in these actions hold that in negligent invasions of the consortium the wife has no cause of action because the husband, who is under a legal duty to support his wife according to his station in life, recovers in his action for the tort, as an element of his damages, for any impairment of his ability to perform his obligation, and thus the wife indirectly recovers for the value of any loss of her consortium. Any other conclusion, they reason, would result in a double recovery. The husband, on the other hand, is allowed the action when the wife is injured, because she is under no corresponding duty to him. (Bernhardt v. Perry; Eschenbach v. Benjamin; Gambino v. Mfgrs'. Coal & Coke Co.; Giggey v. Gallagher Transp. Co. supra.) Of course, as we have already pointed out, there is no foundation for the statement...