Campbell v. City of Atlanta, 43631

• Decision Date: 31 May 1968
• Docket Number: No. 1,No. 43631,43631,1
• Citation: Campbell v. City of Atlanta, 162 S.E.2d 213, 117 Ga.App. 824 (Ga. App. 1968)
• Parties: Mrs. R. J. CAMPBELL v. CITY OF ATLANTA
• Court: Georgia Court of Appeals

Page 213

162 S.E.2d 213

117 Ga.App. 824

Mrs. R. J. CAMPBELL v. CITY OF ATLANTA.

No. 43631.

Court of Appeals of Georgia, Division No. 1.

May 31, 1968.

Syllabus by the Court.

The giving by the husband's attorney of an ante litem notice under Code Ann. § 69-308 to the City of Atlanta of the claim or demand for payment of personal injuries suffered by the husband, is not sufficient for the purposes of said Code section insofar as the wife's loss of consortium is concerned merely because it contained information otherwise sufficient for an investigation of the wife's damages, when the notice does not show on its face that the notice was given by the wife in support of her claim or that it was given by one in her behalf. It was not error to grant a summary judgment in this action by the wife for loss of consortium, in favor of the City of Atlanta.

Cullen M. Ward, Frank M. Eldridge, Atlanta, for appellant.

Henry L. Bowden, Charles M. Lokey, Atlanta, for appellee.

FELTON, Chief Judge.

This case is controlled by the rulings in Jones v. City Council of Augusta, 100 Ga.App. 268, 110 S.E.2d 691, and we deem it unnecessary to repeat a great deal of what was ruled in that case. The Jones case is not distinguishable from this one. All of the facts in this case demand the same conclusions as those reached in the Jones case. In this case, as in the Jones case, the claims of the husband and wife are separate and distinct. Brown v. Georgia-Tennessee Coaches, Inc., 88 Ga.App. 519, 77 S.E.2d 24. In this case it is admitted that the notice was not given by the wife on her claim or by anyone in her behalf. It is contended that the Jones case is distinguishable because in that case the notice given was in behalf of the husband and wife in the derivative action and here it was by the husband in the basic action. There is no such distinction to be made, because in the Jones case the court ruled that the derivative action, in which notice was given, could have been settled and the notice would have become functus officio and the main action would not have been barred, assuming a proper notice was given. In this case the main action could have been settled, the notice would have become functus officio and the wife's action would not have been barred by the mere settlement of the husband's claim. Implicit in the Jones case and others is that since the purpose of the notice is to give opportunity of adjustment of claims without suits, the notice must be by someone whom...