Jarrett v. Parker

Decision Date23 May 1975
Docket Number3,Nos. 50212,Nos. 1,50213,2,s. 50212,s. 1
Citation135 Ga.App. 195,217 S.E.2d 337
PartiesE. S. JARRETT v. Dallas PARKER. E. S. JARRETT v. Carol PARKER
CourtGeorgia Court of Appeals

N. Forrest Montet, Malcolm P. Smith, Atlanta, for appellant.

Robert B. Struble, Toccoa, for appellees.

MARSHALL, Judge.

Carol Parker, while driving her husband's automobile was involved in a collision with an automobile driven by Jarrett. Subsequently, Carol Parker filed suit for damages against Jarrett for personal injuries alleged to have been sustained as a result of the defendant's negligence. Contemporaneously therewith, Dallas Parker, the plaintiff's husband, filed suit for damages against defendant, claiming damages for his automobile, his wife's medical expenses, and loss of consortium, all as a result of the defendant's negligence. Dallas Parker was not in the vehicle operated by his wife at the time of the collision. The two cases were tried together. At the conclusion of the evidence, the jury returned a verdict for the defendant in the case brought by Carol Parker for her personal injuries. In the case brought by Dallas Parker the jury returned a verdict, as follows: 'We the jury find for the plaintiff in the amount of $950, car-$350, medical expenses-$600.'

Both plaintiffs filed separate motions for new trial, and the defendant filed a motion for judgment notwithstanding the verdict in the Dallas Parker case. The trial court granted both plaintiffs' motions for a new trial on the special ground that the verdict against the wife and the verdict in favor of the husband were inconsistent and illegal, and because the court had charged erroneously to the effect that the jury might find for one plaintiff and not for the other plaintiff. The defendant's motion for a judgment notwithstanding the verdict was denied. These orders were certified for immediate review. The appellant enumerates as error the granting of plaintiffs' motions for new trial on the grounds stated in the trial judge's order. Held:

1. Even though this be the first grant of a new trial, the same is reviewable since the motion for new trial were granted solely upon special grounds and not upon the general grounds. Code § 70-208. See Speer v. Gemco Elevator Co., 134 Ga.App. 360, 362, 214 S.E.2d 425 and cases cited therein.

2. Except in plain, palpable and indisputable cases, all questions of negligence, contributory negligence, and cause and proximate cause, and of whose negligence or of what negligence constitutes the proximate cause of an injury are for jury determination. Long Const. Co. v. Ryals, 102 Ga.App. 66(1), 115 S.E.2d 726; Montgomery v. Southern Ry. Co., 78 Ga.App. 370(1d), 51 S.E.2d 66. Under the evidence and law applicable, these cases were for jury determination, as the evidence was sufficient to authorize a finding either for the plaintiff or the defendant. The court did not err in denying the motion for a judgment notwithstanding the verdict.

3. We now come to the controlling question here. As these two separate cases were tried together before the same jury, at the same time, and with the same evidence, was the jury obliged to find for both plaintiffs or against both plaintiffs?

There seems to be no question that under the law in Georgia one spouse is not a privy of the other spouse's prior suit for personal injuries within the meaning of Code Section 110-501. See Russ Transport, Inc. v. jones, 104 Ga.App. 612, 122 S.E.2d 282; Blakewood v. Yellow Cab Co. of Savannah, 61 Ga.App. 149, 6 S.E.2d 126. Thus we have held that 'a husband and wife are not privies within the sense that one is barred from pursuing an independent action for loss of consortium of an injured spouse where the one injured has lost an action on the basis of the jury's finding of no liability.' Armostrong Furniture Co., Inc. v. Nickle, 110 Ga.App. 686, 689, 140 S.E.2d 72, 74.

However, in those cases, and in others (Owens v. Williams, 87 Ga.App. 238, 73 S.E.2d 512; Fenster v. Gulf States Ceramic, 124 Ga.App. 102, 106, 182 S.E.2d 905), the husband's and wife's suits were tried separately at different times, before different juries. Appellant urges us to follow the language in Nickle v. Armstrong Furniture Co.. Inc., 107 Ga.App. 362, 130 S.E.2d 249 to the effect that there should be no difference in the jury's verdicts as to the two spouses whether they are tried together or separately. We do not agree and for that reason must overrule Nickle.

As we stated in White v. Hammond, in 129 Ga.App. 408, 411, 199 S.E.2d 809, 813, 'If the cases were tried separately, the evidence would be presented to twelve different people at each trial. Each jury would hear the evidence-it might be substantially the same at both trials, but it would not be identical. Each jury would observe the witnesses' way and manner of testifying at each trial and form an opinion on the credibility of the witnesses and the weight to be given their testimony-here again, there may be great similarity, but there would not be exact duplication. This is true because as no two people are exactly alike so no two juries are exactly alike. Witnesses do not offer exactly the same testimony in exactly the same manner when testifying at separate trials. Perhaps of even more significance, at separate trials there are different juries, hearing the testimony with different ears, observing the witnesses with different eyes and interpreting and evaluating the evidence with different minds. This, as much as anything, explains and justifies the sometime inconsistent verdicts based on 'the same facts' by different juries. However, in this case, and in Nickle, supra, the same jury heard the evidence in both cases. The witnesses testified only once. Their testimony was exactly the same in both cases. Their mode and manner of testifying was exactly the same in both cases. The same jury weighed the evidence and the credibility of the witnesses, and came up with unreconcilable verdicts. This type result breeds an inconsistency into our system that undermines its foundation through destruction of its credibility. Nickle v. Armstrong Furniture Co., 107 Ga.App. 362, 130 S.E.2d 249, supra, is expressly disapproved insofar as it allows inconsistent verdicts from the same jury.'

The doctrine of state decisis does not freeze a decision into our law in perpetuity. Our law is a constantly growing, evolving, developing body. This is particularly the case where the precedent relied upon is a single case decided as late as 1963, which has been cited only once to our knowledge, i.e., Purdy v. Norrell, 111 Ga.App. 546(2), 142 S.E.2d 311.

'(T)he principle of stare decisis is effective in this State and should be followed unless and until the older decisions on a question have been overruled. If it is to be argued that cases can not be overruled because of state decisis, then no case could ever be overruled. Certainly, this is not a sound position.' Capers v. Ball, 211 Ga. 502, 506(5), 87 S.E.2d 85, 89. After extolling the virtues of state decisis, the Supreme Court in Almand v. Almand & George, 95 Ga. 204, 207, 22 S.E. 213, 214 held that, 'We do not mean to say that every decision, however erroneous, should be permitted to stand; nor ought reverence for a mere precedent control the judgment of a court of last resort.' In Robison v. Beall, 26 Ga. 17, 59-62, that court discussed at length what decisions a court is not bound to follow. In Aultman v. Spellmeyer, 111 Ga.App. 769, 773, 143 S.E.2d 403, 406, Judge Bell aptly summarized the duty of the courts in this regard, thusly: 'In City of Atlanta v. First Presbyterian Church, 86 Ga. 730, 733, 13 S.E. 252, 253, (12 LRA 852,) Chief Justice Bleckley wrote 'Courts, like individuals, but with more caution and deliberation, must sometimes reconsider what has been already carefully considered, and rectify their own mistakes.' And again in another case the same Chief Justice said, 'Some courts live by correcting the errors of others and adhering to their own . . . At the peril of their lives they must discover error abroad, and be discreetly blind to its commission at home.' Ellison v. Georgia Rd. Co., 87 Ga. 691, 695-696, 13 S.E. 809, 810. These admonitions are but another way of saying honestly that appellate courts are courts for correction of errors including their own.'

We conclude that the jury verdicts here were inconsistent, repugnant and illegal, because of the jury's award to the husband of his wife's medical expenses. In this case, the husband's cause of action for medical expenses and loss of his wife's services are wholly derivative from the wife's cause of action. See Bray v. Westinghouse Electric Corp., 103 Ga.App. 783, 120 S.E.2d 628; Hightower v. Landrum, 109 Ga.App. 510, 514, 136 S.E.2d 425. But, see dictum in Fester v. Gulf States Ceramic, 124 Ga.App. Fenster v. Gulf States Ceramic, 124 Ga.App. jury decided against the wife, it, in effect, determined that the defendant had not caused her injury and without injury she could not have incurred medical expenses 1 and the husband could not have lost her services. In other words, the same jury's verdict against the wife necessarily precluded those claims for damages sought by the husband which are derivative from the wife's claim. (The rule appears to be different where separate juries are involved, there being no collateral estoppel even as to damages that are purely derivative. See Annot., 12 A.L.R.3d 933 (1967); 41 AmJur2d, Husband & Wife, § 460 (1968)).

Here, as in White, the jury was authorized to find that the wife had not been injured by the defendant's negligence but that the husband had been, in the form of damages to his car. The evidence in this case shows that Carol Parker's injury was primarily to her back and was substantially subjective in nature. The evidence of her injury, though it may authorize a verdict in her favor, does not demand such a verdict. '(N)egligence...

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