Hightower v. Landrum
| Decision Date | 02 April 1964 |
| Docket Number | 2,Nos. 1,3,No. 40389,40389,s. 1 |
| Citation | 109 Ga.App. 510,136 S.E.2d 425 |
| Parties | Willie HIGHTOWER v. Christine C. LANDRUM et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. An assignment of error that the verdict is contrary to the charge, or a portion thereof, presents no question for decision.
2, 4. In a wife's suit to recover for the loss of her husband's consortium alleged to have resulted from injuries negligently inflicted upon him by the defendant, the jury is concerned with the nature and extent of the husband's injuries and whether they were inflicted under circumstances giving rise to liability on the part of the defendant therefor; consequently it is error to charge that they are not so concerned.
3. Although it is better that no reference be made in the charge as to whether the husband has brought suit for his injuries, a statement that 'there is no suit here in his favor' is not harmful error.
5 (a). Code § 105-2011, providing that the jury, in the verdict, may apportion the damages among joint trespassers is applicable only to trespasses against property, and has no application in an action for a personal tort.
(b) Though the damages sought are not capable of exact pecuniary measure and must be left to the enlightened consciences of impartial jurors, the court should give the jury some appropriate, though not necessarily elaborate, instruction on that subject.
6. The doctrine of imputed negligence has no application as to an action brought by a master against his servant for injuries alleged to have been suffered from the negligent operation of the master's vehicle by the servant; as between them the doctrine of comparative negligence applies. However, if the action is against a third party or a third party is joined as a joint tortfeasor the servant's negligence is imputed to the master who has control of or the right to control the servant's operation of the vehicle, as between the master and the third party.
This is an appeal by Willie Hightower from the verdict and judgment against him in the case of Mrs. Christine Chalker Landrum v. Shapiro Packing Co., Inc., William Bryant and Willie Hightower. Mrs. Landrum alleged that her husband, Jake Landrum, had sustained severe injuries when a truck, owned by him but operated by Hightower and in which Landrum was riding, collided with a truck of Shapiro Packing Co., Inc., operated by William Bryant, and that both Hightower and Bryant had been negligent in particulars delineated in the petition. She alleged that there was a large amount of traffic on the highway, that it was raining at the time, that Hightower slowed the Landrum truck down to about 20 m. p. h. approximately 120 feet from and preparatory to turning in at a filling station located on the right side of the highway and at the corner of an intersection, that the Shapiro truck, driven by Bryant, was following at a speed of from 55 to 60 m. p. h. and did not reduce its speed although within 200 feet of the intersection and that it collided with the rear of the Landrum truck. She alleges that within three minutes after the collision Bryant stated that he was sorry it had occurred, that he was at fault, that his employer was covered by insurance and that the insurance company would pay plaintiff (sic) for his injuries and damages. It is alleged that the Landrum truck was equipped with a rear-view mirror in which Hightower could have seen the Shapiro truck approaching from the rear. Hightower is alleged to have been negligent in suddenly reducing his speed when the truck to the rear was approaching at a fast speed; in turning to the right, necessitating the reduction of speed, which was dangerous; in failing to so control his speed as to avoid a collision; in not exercising any care and diligence under the circumstances for the safety of those who were in the truck and other travelers on the highway. Bryant was alleged to have been negligent in driving the Shapiro truck from 55 to 60 m. p. h. on a wet, heavily traveled road at the approach to an intersection; in not having the truck under such control as to enable him to stop on the wet pavement if the vehicle ahead should slow or stop; in driving the truck into the truck ahead rather then around it to the left, there being no oncoming traffic at the time; in failing to reduce his speed upon approaching the intersection; in failing to apply brakes and turn the truck to the left to avoid the collision; in failing to exercise care and caution for the safety of other travelers on the highway and the occupants of the other truck.
She alleged that the proximate cause of the collision was the concurring gross negligence of both drivers, that the defendant Shapiro Company was liable for the negligence of its servant or agent, Bryant, and that as a result of the concurring negligence her husband suffered injuries which brought about her loss of his society, companionship and consortium. Demurrers to the petition, as amended, were overruled and upon a trial a verdict was returned for the plaintiff against all defendants. Willie Hightower, driver of the Landrum truck, filed his separate motion for new trial and an amendment thereto, which was overruled and he excepts.
Allgood & Childs, Thomas F. Allgood, Augusta, J. Cecil Davis, E. Purnell Davis, Warrenton, for plaintiff in error.
Fulcher, Fulcher, Hagler & Harper, Augusta, Kenneth Goolsby, Randall Evans, Jr., Thomson, for defendant in error.
1. In special ground 1 of the amended motion for new trial error is assigned upon the ground that the verdict is contrary to a specified pertion of the charge of the court. Ellis v. Riley, 18 Ga.App. 778(1), 90 S.E. 724.
2. In special ground 2 error is assigned upon the charge of the court: 'Gentlemen
of the jury, there were certain allegations in the plaintiff's petition about the injuries that were received in this collision by Mr. Jake Landrum, the husband of Mrs. Landrum. Now gentlemen these are in the petition for the purpose of showing whether or not the question should be submitted to the jury as to whether or not Mrs. Landrum has lost her right of consortium with her husband, and you are not concerned with how much Mr. Landrum himself might have been injured. There is no suit here in his favor.' It is contended that the jury was concerned with how much the husband had been injured and that to charge the jury that the extent of his injuries was no concern of theirs was error harmful to the defendant.
We think this assignment has merit. The amount of the impairment or disablement of the husband is basic in determining whether and to what extent the wife has been deprived of his consortium. If the portion of the quoted charge had been omitted the charge would have been proper and free from error.
3. In special ground 3 error is assigned upon the charge: 'There is no suit here in his favor.' While it might have been better if the court had made no reference to the matter of any suit, or lack of it, in the husband's favor since that matter was entirely irrelevant to the issue on trial, yet we can see no harmful error in this statement. It is urged that this was calculated to influence the jury to include in their verdict some amount for the husband's injuries, but we think it just as logical to say that it was calculated to caution them to refrain from that.
4. In special ground 4 error is assigned upon the charge: It is urged that the statement to the jury that 'you are not concerned with whether or not Mr. Landrum is entitled to recover' is incorrect because it is basic and fundamental that no determination of any loss of consortium could be made unless the jury could find, under the facts of this case, that the husband had a cause of action against these defendants for his own injuries.
We are in agreement with this contention. The jury was necessarily concerned with the matter of whether the facts were such that liability would attach against the defendants for their alleged negligence in causing injury to Mr. Landrum. The right of the wife to recover for loss of consortium on account of alleged injuries inflicted upon her husband can not arise unless her right to the consortium has been adversely affected under circumstances giving rise to liability and from which liability attaches. Suppose, for example, it should appear that the husband's injuries had resulted from a pure accident, or from nonnegligent act of another, certainly it could not be held that simply because the consortium is lost the wife may recover. And, so, before making any determination that the wife is entitled to recover the jury must determine whether the consortium has, in fact, been lost and, if so, whether the cause of the loss was such as to give rise to liability on the part of the defendants. One spouse's right of action for the loss of the other's society or consortium is a derivative one, stemming from the right of the other. Henningsen v. Bloomfield Motors, Inc., 32...
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