Mcdade v. West, 32547.

• Decision Date: 03 November 1949
• Docket Number: No. 32547.,32547.
• Citation: 56 S.E.2d 299,80 Ga.App. 481
• Court: Georgia Court of Appeals
• Parties: McDADE. v. WEST et al.

56 S.E.2d 299

80 Ga.App. 481

McDADE.

v.WEST et al.

No. 32547.

Court of Appeals of Georgia,

Division Nos. 1 & 2.

Nov. 3, 1949.

Rehearing Denied Nov. 23, 1949.

Action by Mrs. Docia Ruth McDade against Thomas B. West and C. G. Aycock for damages for loss of consortium of her husband allegedly resulting from personal injuries because of the alleged negligence of the defendants.

The Superior Court, Fulton County, Frank A. Hooper, J., dismissed the action on defendant's general demurrer and the plaintiff sued on a writ of error.

The Court of Appeals were equally divided as to whether a wife has a cause of action for damages for the loss of consortium due to injuries suffered by her husband but held, Felton, J., that the petition did not allege facts showing a duty on part of defendants to warn the servant of an independent contractor as to the condition of smokestack which resulted in injury to the husband of the plaintiff and affirmed the judgment of the trial court

Syllabus by the Court.

1. The court is evenly divided on the question whether an action lies in favor of a married woman to recover from a tortfeasor for injuries to her husband allegedly resulting in loss of consortium.

2. The facts alleged do not set forth a cause of action for negligence against defendants.

Mrs. Docia Ruth McDade sued Thomas B. West and C. G. Aycock for damages for the loss of the consortium of her husband allegedly resulting from personal injuries to him because of the alleged negligence of the defendants. The petition alleged that the defendants owned an apartment house as tenants in common and employed the Georgia Waterproofing and Erection Company to paint two smokestacks on the top of the apartment house; that the roof was about thirty feet from the ground and each smokestack extended about twenty feet above the roof; that the apartment house was in two units with an alley between the units; that on June 20, 1947, plaintiff's husband was employed as a painter by the Georgia Waterproofing and Erection Company to paint the smokestack on the northern unit of the apartment house; that when he arrived at the apartment house another painter was painting the smokestack on the southern unit and had completed one-third of the stack before plaintiff's husband ascended the northern smokestack; that before plaintiff's husband ascended the northern smokestack he made an inspection of it by attempting to shake it with his hands to determine whether it was firmly in position and that he made an inspection of its wire supports to determine whether they were secure and found nothing to indicate that the smokestack was not in a safe condition; that plaintiff's husband then scaled and ascended the northern smokestack and began painting at the top of the smokestack and that he did so in the usual and customary manner of a painter and in the exercise ofordinary care; that within a period of less than five minutes after he had ascended the smokestack it suddenly and without warning gave way and bent to a position so that the mouth of the stack was pointing downward over the edge of the apartment house and into the alley and that plaintiff's husband was thrown to the ground some fifty feet below and was seriously injured; that the steel smokestack was an instrument which was subject to deterioration and corrosion caused by the natural elements of water and sun, etc, and by gases, chemicals and other by-products of combustion, which weakened the stack and that such weakening could have been detected only by a trained engineer or a person with long experience with heating equipment and smokestacks used in connection therewith; that the smokestack had been in use for a long period of years and that defendants alone knew how long; that the structural strength of the stack had been greatly weakened and on June 20, 1947, the deterioration had proceeded to such an extent that it was dangerous for anyone to ascend it; that plaintiff's husband was not an engineer and had no training or experience qualifying him to discover the defect in the stack; that plaintiff's husband did not know of the defect and could not have discovered it by the exercise of ordinary care; that the wire supports which held the stack in place and the stack were subject to being weakened by wind pressure and had in fact been weakened and were weak on June 20, 1947; that a reasonable inspection of the stack by a qualified engineer, prior to plaintiff's husband's ascending it, would have disclosed to defendants the weakened condition of the structural strength of the stack; that defendants knew of the defects in the stack or could have known if defendants had had an inspection made by a qualified engineer, and that defendants knew, or in the exercise of ordinary care should have known, of the defects in the stack; that defendants did not warn plaintiff's husband of the defects and weakness in the stack; that plaintiff's husband relied upon, and had the right to reply upon, the implied representation of defendants that the premises were in a safe condition and that the smokestack was in a safe condition for him to ascend and paint it. The following acts of negligence are specified: "(a) In that the defendants failed to warn plaintiff's husband of the unsafe condition of said smokestack prior to the time when he ascended said smokestack to paint it as he was employed to do. (b) In that the defendants, if they did not have actual knowledge of whether or not said smokestack was safe, failed to make, or have made, an inspection by a qualified engineer to determine whether or not said smokestack was in a safe condition so that plaintiff's husband could ascend said smokestack to paint it. (c) In that the defendants permitted plaintiff's husband to ascend said smokestack while it was in a dangerous condition. (d) In that the defendants permitted plaintiff's husband to ascend said smokestack with the knowledge that defendants could have determined by a proper inspection by a qualified engineer whether or not said smokestack was in a dangerous condition and with the further knowledge that no such inspection had been made. (e) In that the defendants did not exercise ordinary care to keep said premises safe so that plaintiff's husband, an invitee, could come upon said premises and use them without injury to himself." The defendants' general demurrer was sustained and the action dismissed, and the plaintiff excepted.

Moreton Rolleston, Jr., Atlanta, for plaintiff in error.

M. Cook Barwick, Atlanta, for defendant in error.

FELTON, Judge.

1. The court is evenly divided on the question whether a wife has a cause of action for damages for the loss of consortium due to injuries suffered by her bus-band.

The views of Sutton, C. J, MacIntyre, P. J. and Worrill, J, to the effect that no such action will lie, are as follows: It has almost universally been held that a wife has no such cause of action in the absence of a statute giving the right. The cases denying the right base their reasoningmainly on the facts that no such remedy existed at common law; the married women's acts grant no such remedy; the injury is a direct injury to the husband for which he can sue and the damage to the wife is too remote and indirect to permit her to recover. 27 Am.Jur. § 514, p. 114; Emerson v. Taylor, 133 Md. 192, 104 A. 538, 5 A.L.R. 1049; Hinnant v. Tidewater Power Co., 189 N.C. 120, 126 S.E. 307, 37 A.L.R. 897; Annotation 59 A.L.R. 681; A.L.R. Permanent Blue Book, p. 16; Restatement, Law of Torts, Vol. 3, p. 496, sec. 695; 30 C.J. p. 973, § 693; 41 C.J.S., Husband and Wife, § 404; 13 R.C.L. p. 1443, sec. 493. The Supreme Court of North Carolina in the case of Hipp v. E. I. Dupont de Nemours & Co., 182 N.C. 9, 108 S.E. 318, 18 A.L.R. 873, held that in a case where the husband was mutilated but not killed the wife had a cause of action for loss of consortium due to negligent injuries. That court, in a case where the husband was killed, repudiated the ruling in the Hipp case stating: "After diligent research, we have failed to find a single decision (apart from the intimation in Hipp v. E. I. Dupont de Nemours & Co., supra) which approves the wife's right to recover damages for the loss of consortium under the circumstances appearing in the instant case, and to sanction such right of recovery would be tantamount to the recognition of a doctrine utterly at variance with the most enlightened judicial opinion prevailing in other jurisdictions." We find no case, other than the Hipp case, holding that a wife has such a cause of action. We find no case in Georgia on the question. Cases allowing the wife a recovery for damages for alienation of affections, criminal conversation, etc., are distinguished by the...