Bulloch County Hospital Authority v. Fowler

• Decision Date: 20 May 1971
• Docket Number: Nos. 26516-26519,s. 26516-26519
• Citation: 182 S.E.2d 443,227 Ga. 638
• Parties: BULLOCH COUNTY HOSPITAL AUTHORITY v. Mrs. C. M. FOWLER. Mrs. C. M. FOWLER v. BULLOCH COUNTY HOSPITAL AUTHORITY. John MOONEY, Jr. v. Mrs. C. M. FOWLER. Mrs. C. M. FOWLER v. John MOONEY, Jr.
• Court: Georgia Supreme Court

Page 443

182 S.E.2d 443

227 Ga. 638

BULLOCH COUNTY HOSPITAL AUTHORITY v. Mrs. C. M. FOWLER.

Mrs. C. M. FOWLER v. BULLOCH COUNTY HOSPITAL AUTHORITY.

John MOONEY, Jr. v. Mrs. C. M. FOWLER.

Mrs. C. M. FOWLER v. John MOONEY, Jr.

Nos. 26516-26519.

Supreme Court of Georgia.

May 20, 1971.

Lanier & Lanier, Robert S. Lanier, Allen, Edenfield, Brown & Franklin, B. Avant Edenfield, Neville & Neville, W. J. Neville, Johnston & Brannen, Sam L. Brannen, Statesboro, for appellants.

Alton D. Kitchings, Savannah, for appellee.

Syllabus Opinion by the Court

NICHOLS, Justice.

The Court of Appeals has certified the following questions to this court:

'1. (a) Where a widow, having minor children, sues for the wrongful death of her husband, what is the measure of damages upon which she may recover?

See Slater Contracting Co. v. Williams, 101 Ga.App. 549(2), 114 S.E.2d 448, holding that it is not 'the enlightened conscience of the jury.'

(b) Is her recovery to be measured by the gross sum that her husband would have earned to the end of his life, had he lived, reduced to its present cash value?

(c) Is her recovery in the nature of, or similar to that of a permanently injured party who seeks recovery of lost future earnings?

See Long v. Serritt, 102 Ga.App. 550, 554(4), 117 S.E.2d 216, and citations; Pollard v. Boatwright, 57 Ag.App. 565, 568, 196 S.E. 215, infra, and citations.

(d) Are there other items for which she may recover?

(e) If there are other items for which she may recover, what are they?

(f) Does the measure of her recovery include a consideration of her loss of the husband's providing for the wants and needs of the family?

See Central Railroad v. Rouse, 77 Ga. 393(6), 3 S.E. 307; Atlantic, Valdosta & Western R. Co. v. McDilda, 125 Ga. 468, 471, 54 S.E. 140; Central of Ga. R. Co. v. Prior, 142 Ga. 536, 537(2), 83 S.E. 117; Atlanta, Birmingham & Coast R. Co. v. Thomas, 64 Ga.App. 253, 255(7), 12 S.E.2d 494 (cert. den.); Pollard v. Boatwright, 57 Ga.App. 565, 568, 196 S.E. 215 (cert. den.); Rhodes v. Baker, 116 Ga.App. 157(4), 156 S.E.2d 545; Smith v. McBride, 119 Ga.App. 94, 166 S.E.2d 407; Compare with City of Macon v. Smith, 117 Ga.App. 363, 373(8), 160 S.E.2d 622, where the action was for the wrongful death of a mother, and Savannah Electric Co. v. Bell, 124 Ga. 663, 57 S.E. 109; Henry Grady Hotel Corp. v. Watts, 119 Ga.App. 251, 257, 167 S.E.2d 205, where the actions were for the wrongful death of a child.

2. Is the true value of the life of a deceased husband 'the value of the life of the deceased to himself, had he lived?'

See Atlanta, V. & W.R. Co. v. McDilda, 125 Ga. 468, 471, 54 S.E. 140, supra; Pollard v. Boatwright, 57 Ga.App. 565, 568, 196 S.E. 215, supra. Atlanta, Birmingham & C.R. Co. v. Thomas, 64 Ga.App. 253, 257-258, 12 S.E.2d 494, supra (cert. den.).

3. Are such items as a father's society, advice, example and counsel to the widow and to the children proper upon which to submit evidence for the jury's consideration in arriving at the 'full value of the life' of the deceased husband?

See Central Railroad v. Rouse, 77 Ga. 393(6), 3 S.E. 307, supra, and Peeler v. Central of Georgia R. Co., 163 Ga. 784(2), 137 S.E. 24 and Vickers v. Vickers, 210 Ga. 488, 80 S.E.2d 817 (discussing the effect of the 1924 amendment to the wrongful death statute to permit children other than minors to sue); Southern R. Co. v. Turner, 89 Ga.App. 785, 788(3), 81 S.E.2d 291.

4. Are the father's society, advice, example, counsel to the widow and children, and the like, elements of consortium for which there can be a recovery in a wrongful death action?

See cases cited under Question 3 and Complete Auto Transit v. Floyd (5th Cir.) 249 F.2d 396, 399, where, in a footnote, the court asserted that 'the Georgia decisions brought before us do not point definitely to the meaning of these words,' referring to 'full value of the life' of a deceased under Code §§ 105-1306, 105-1308, and American R. Co. of Porto Rico v. Didricksen, 227 U.S. 145, 33 S.Ct. 224, 57 L.Ed. 456; Byrne v. Matczak, 3 Cir., 254 F.2d 525, 77 A.L.R.2d 1077; Burns v. Van Laan, 367 Mich. 485, 116 N.W.2d 873, 876; Schaub v. Hannibal & St. J. R. Co., 106 Mo. 74, 16 S.W. 924; Staal v. Grand Rapids & Ind. R. Co., 57 Mich. 239, 246, 23 N.W. 795, 798; Cooper v. Shore Elec. Co., 63 N.J.L. 558, 44 A. 633, 636; Capone v. Norton, 11 N.J.Super. 189, 78 A.2d 126; McStay v. Przychocki, 7 N.J. 456, 81 A.2d 761; Costello v. Buffalo Gen. Elec. Co., 183 App.Div. 48, 170 N.Y.S. 1006; Fornaro v. Jill Bros., Inc., 42 Misc.2d 1031, 249 N.Y.S.2d 833; Armentrout v. Hughes, 247 N.C. 631, 101 S.E.2d 793, 69 A.L.R.2d 620; Kennedy v. Byers, 107 Ohio St. 90, 140 N.E. 630; Karr v. Sixt, 146 Ohio St. 527, 67 N.E.2d 331; Gaydos v. Domabyl, 301 Pa. 523, 152 A. 549; Smith v. Presentation Academy of Aberdeen, 61 S.D. 323, 248 N.W. 762; 5 Sutherland on Damages (4th) § 1265; Tiffany on Wrongful Death Acts, §§ 154, 158, 160; 22 Am.Jur.2d, Death, §§ 245, 258.

But see, Gilmore v. Los Angeles R. Corp., 211 Cal. 192, 295 P. 41; Dina v. Seaboard Air Line R. Co., 90 Fla. 558, 106 So. 416, 417; Butler v. Williams (Fla.App.) 133 So.2d 109; Gulf Transport Co. v. Allen, 209 Miss. 206, 46 So.2d 436; Mishoe v. A.C.L.R. Co., 186 S.C. 402, 197 S.E. 97; Gomillion v. Forsythe, 218 S.C. 211, 62 S.E.2d 297; Miller v. Alexandria Truck Lines (5 Cir.) 273 F.2d 897, 79 A.L.R.2d 812; Re Behm's Estate, 117 Utah 151, 213 P.2d 657, 40 A.L.R.2d 490; Wolfe v. Lockhart, 195 Va. 479, 78 S.E.2d 654; Nichols v. United States F. & G. Co., 13 Wis.2d 491, 109 N.W.2d 131; Muir v. Haggerty, 77 Wyo. 280, 314 P.2d 948.

And see Brown v. Ga.-Tenn. Coaches, Inc., 88 Ga.App. 519, 77 S.E.2d 24 (cert. den.); Walden v. Coleman, 105 Ga.App. 242, 243, 124 S.E.2d 313, and cases there cited; Cody v. Peak, 113 Ga.App. 676(2), 149 S.E.2d 521; Central of Ga. R. Co. v. Prior, 142 Ga. 536, 537(2), 83 S.E. 117, supra; Cf. Louisville & Nashville R. Co. v. Lunsford, 216 Ga. 289, 116 S.E.2d 232 holding that items of consortium are not recoverable in a statutory FELA case.

5. (a) In arriving at the 'full value of the life' of the deceased husband are items such as the age of the deceased at the time of his death, his health, his habits, his expectation of life, the employment or business in which he was engaged and his earnings therefrom, the probable loss or continuation of employment, his voluntary abstinence from work, dullness in business, the probability of a reduction in earnings with his increasing age, his infirmities with increasing age, and a corresponding reduction in earning capacity, proper for consideration by the jury? See cases cited under Questions 1 and 2, and Central of Georgia R. Co. v. Ray, 129 Ga. 349, 58 S.E. 844.

(b) If the answer to the above question is yes, are these items to be considered other than in assisting the jury to arrive at a fair determination of the deceased's probable gross earnings during the remainder of his expectancy?

There are other questions to be decided in these cases, and the answers to these questions will not be dispositive of the appeals.'

1. The answer to the question 1(a) is set forth in Code §§ 105-1302 and 105-1308 as follows: 'A widow, or, if no widow, a child or children, minor or sui juris, may recover for the homicide of the husband or parent, the full value of the life of the decedent, as shown by the evidence. (Act 1850, Cobb. 476. Acts 1855-6, p. 155; 1878-9, p. 59; 1924, p. 60.)' 'The full value of the life of the decedent, as shown by the evidence, is the full value of the life of the decedent without deduction for necessary or other personal expenses of the decedent had he lived. (Acts 1887...