Burns v. Brickle

• Decision Date: 24 May 1962
• Docket Number: No. 39325,Nos. 1,2,3,39325,s. 1
• Citation: 106 Ga.App. 150,126 S.E.2d 633
• Parties: Bertie M. BURNS v. John BRICKLE et al
• Court: Georgia Court of Appeals

Page 633

126 S.E.2d 633

106 Ga.App. 150

Bertie M. BURNS v. John BRICKLE et al.

No. 39325.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

May 24, 1962.

Rehearing Denied June 14, 1962.

Syllabus by the Court

Where the plaintiff was injured as the result of a collision between her automobile and that of the defendants, and where the plaintiff's son who was riding as a passenger in her automobile was killed in the collision, the plaintiff could maintain against the tortfeasor an action for her personal injuries, and such action was not barred by the fact that she had previously or concurrently brought a separate suit under the provisions of Code Ann. § 105-1307, as amended, to recover for the wrongful death of her son. If the defendant desired to avoid a multiplicity of suits, his remedy was to invoke the discretion of the trial court by filing a motion for consolidation.

Sanders, Thurmond, Hester & Jolles, Augusta, for plaintiff in error.

Fulcher, Fulcher, Hagler & Harper, William C. Reed, Augusta, for defendant in error.

CARLISLE, Presiding Judge.

Mrs. Bertie Marie Burns brought suit against John Brickle and Standard Coffee Company, Inc., to recover for her personal injuries allegedly sustained as the result of an automobile collision proximately caused by the negligence of the defendant Brickle. The defendants filed a plea to compel the plaintiff to elect between prosecuting this suit and another which she had previously filed against the same defendants to recover, under the provisions of Code Ann. § 105-1307, the full value of the life of her son, James W. Burns, Jr., who it was alleged died instantly as the result of injuries he received in the same automobile collision as that on which this action is predicated. The trial court sustained the motion of the defendants to dismiss the plaintiff's action for her personal injuries on the ground that the pendency of the action for the death of her son constituted a bar to the prosecution of this case. The assignment of error here is on that judgment.

Prior to the enactment of the wrongful death statutes (now codified as Code Ch. 105-13 of the Code), and, under the common law, the right to recover for the negligent homicide of a husband, wife, parent or child, did not exist. Bloodworth v. Jones, 191 Ga. 193, 194, 11 S.E.2d 658 The acts from which this chapter was codified establish liability for wrongful death where none existed before. Western & Atlantic R. Co. v. Michael, 175 Ga. 1, 13, 165 S.E. 37; Thompson v. Watson, 186 Ga. 396, 405, 197 S.E. 774, 117 A.L.R. 484. While the individual sections of this chapter were enacted at different times and have been separately amended at different times, they, nevertheless, all have for their purpose the same objective, that is, to establish the right of a husband and child, or children, to recover for the homicide of their wife and mother, of a wife or children to recover for the homicide of the husband or the father, and of the mother, or, if none, the father to recover for the homicide of his or her child, or children. The provisions of this chapter, therefore, should be construed together (City of Elberton v. Thornton, 138 Ga. 776, 76 S.E. 62, Ann.Cas.1913E, 994), and a construction given to one provision, unless manifestly inapplicable, should be applied to the others.

A cause of action has been defined as, 'being the fact or facts which establish or give rise to a right of action, the existence of which affords a party a right to judicial relief.' 1 Am.Jur. 404, Actions, § 2. If the facts which give rise to the cause of action are the same the action is but a single one, but if different facts establish or give rise to the right of action, although some of the same evidence may be admissible in both cases, the actions are separate and may be separately maintained subject to the power of the trial court to order the consolidation of the two actions. 1 Am.Jur. 482, Actions, § 97. According to the view which this court entertains, the right to recover for the wrongful death under the facts of this case is a separate cause of action from the right to recover for personal injuries of the plaintiff and not merely an additional element of damages, and the two actions ought not to be required to be brought together even though they arise out of the same wrongful or tortious act. This is so because the right of one to recover for property damage and personal injury has its origin in the common law and the plaintiff need assert no statutory authority in order to sue for personal injuries or property damage. It is a right personal to the injured person and if it survives after his death it survives only to his personal representative. Thompson v. Watson, 186 Ga. 396, 197 S.E. 774, supra. On the other hand, as shown above, actions for wrongful death are statutory in origin and repose in the person or persons to whom such right is given by the statute solely by reason of the survivor's relationship to the deceased. Thus the injury sustained by the plaintiff on account of the death is sustained in a different capacity from the injury sustained by the plaintiff on account of his or her own personal injuries, and for this reason the rule against splitting causes of action is not applicable. Nashville, C. & St. L. R. v. Hubble, 140 Ga. 368, 371, 78 S.E. 919, L.R.A.1915E, 1132; Southern R. Co. v. King, 5 Cir., 160 F. 332(2).

Furthermore, while the period of limitations to sue for personal injuries and for wrongful death is two years (Code § 3-1004; Atlantic V. & W. R....