Kelly v. McCoy
| Decision Date | 19 February 1952 |
| Docket Number | No. 33935,No. 2,33935,2 |
| Citation | 85 Ga.App. 514,69 S.E.2d 652 |
| Parties | KELLY v. McCOY et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where a single alleged tort, in the commission of which by the defendants both the plaintiff and his wife are injured, gives rise to several elements of damages in favor of the husband, such as damages for the loss of the wife's services, damages for the hospital bills expended, and damages because of the personal injuries sustained by the plaintiff--in such a situation there is but a single cause of action.
J. A. Kelly filed suit for damages, in Cobb Superior Court against Maurice McCoy and Rex D. Gardner, in which he sought to recover of the defendants on account of personal injuries sustained by his wife by reason of the defendants' negligence, for the loss of his wife's services and for the doctors' and hospital bills incurred by reason of said injuries to her, same being suit No. 3739. On the same day, the plaintiff filed in said court suit No. 3740, same being against the two above-named persons as defendants, seeking to recover damages on account of certain personal injuries which he sustained as a result of the negligence of the defendants in the transaction in which his wife was injured, as alleged in said suit No. 3739, as well as for medical expenses incurred in the treatment of his injuries. It appeared from the allegations of these two petitions, to wit, the petitions in suit No. 3739 and No. 3740, in said court, that the subject matter involved was the same automobile collision; that the defendant, Maurice McCoy, is a minor 17 years old; that the husband was driving his car, in which his wife was an invited guest, in a southerly direction along Ivy Street in Atlanta; that, as he approached where Ivy and Ellis Streets intersect, he had to wait until the red signal light at this intersection turned green, and when it did he drove on across the intersection, when he saw an automobile, on his right, coming down the hill on Ellis Street at a reckless and illegal speed of 35 miles an hour, which car was out of control, and headed directly towards the right side of plaintiff's said car, where his wife was seated; that although the plaintiff had the right of way, and was traveling at the moderate speed of ten miles an hour, he immediately accelerated his speed and turned to the left in an effort to avoid being struck by the defendant's car coming downhill at a rapid speed and out of control, yet said car struck the car of the plaintiff, injuring both the plaintiff and his wife. It was set up in the petition that the automobile, which struck the plaintiff's car and inflicted the injuries on the plaintiff and on his wife and caused the damages sued for in the two suits by the plaintiff against the defendants was being operated at the time by the defendant McCoy and was owned by the defendant Gardner; that the car which was at the time being driven by McCoy, at the instance and with the knowledge of Gardner, was in a defective condition, in that it was not equipped with sufficient, adequate, and proper brakes, not having a master cylinder on the brakes, and that the handbrakes would not function and Gardner knew this when he permitted McCoy to operate the car; and that the injuries received by the plaintiff and his wife were the direct and proximate result of the negligence of the defendants in various particulars, as set forth in the petition; and that the defendant Gardner is liable because he entrusted this car to McCoy, knowing it was in the above explained condition and would probably result in injury and damage to the plaintiff and to his wife or to some other person or persons, and because said automobile, owned by Gardner, was a family-purpose car and was being operated on this occasion by McCoy, who was a member of the family of Gardner, and also a minor, and brother-in-law of Gardner, and yet he allowed McCoy to drive his said car, knowing of its defective condition due to insufficient, inadequate, and worthless brakes.
The record discloses that on January 15, 1951, Mrs. Elizabeth K. McCoy, mother of Maurice McCoy, was appointed by the court as guardian ad litem.
Thereupon, the defendant Gardner, on February 10, 1951, interposed to said suit No. 3740, his plea of lis pendens, and alleged that, on or about January 11, 1951, the plaintiff filed a suit in said court, same having jurisdiction of the person and the subject matter thereof, and the action set out in said petition is between the same parties and for the same cause of action as in the instant case, and purports to show a valid cause of action, and this defendant was duly served with the first-mentioned petition and process, and the same is still pending in this court.
Thereafter, on February 27, 1951, the defendant Maurice McCoy, through Mrs. Elizabeth McCoy, as guardian ad litem, filed to said suit No. 3740, a plea of lis pendens and alleged as above set forth.
The defendants, in each of the pleas, prayed that the instant petition or action (case No. 3740) abate and be dismissed.
It appears from the record and the briefs of counsel that the plaintiff demurred to each of the lis pendens pleas interposed by the two defendants, same being separately filed upon different dates. However, the record does not contain these demurrers, and they were not specified by the plaintiff in error as part of the...
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