Smallwood v. Bickers

• Decision Date: 30 September 1976
• Docket Number: No. 3,52369,Nos. 52368,s. 52368,3
• Citation: 139 Ga.App. 720,229 S.E.2d 525
• Parties: Nellie SMALLWOOD v. D. S. BICKERS and West Paces Ferry Hospital, Inc. Nellie SMALLWOOD, Administratrix v. D. S. BICKERS and West Paces Ferry Hospital, Inc
• Court: Georgia Court of Appeals

Page 525

229 S.E.2d 525

139 Ga.App. 720

Nellie SMALLWOOD v. D. S. BICKERS and West Paces Ferry Hospital, Inc.

Nellie SMALLWOOD, Administratrix v. D. S. BICKERS and West Paces Ferry Hospital, Inc.

Nos. 52368, 52369.

Court of Appeals of Georgia, Division No. 3.

Sept. 30, 1976.

Scheer & Elsner, Robert A. Elsner, Paul D. Hermann, Edgar A. Neely, Jr., Atlanta, for appellant.

Thomas Marvin Smith, Hunter S. Allen, Jr., Robert G. Tanner, Swift, Currie, McGhee & Hiers, W. Wray Eckl, Drake E. Chandler, Atlanta, for appellees.

QUILLIAN, Judge.

The appeals in these cases are considered together because they involve two companion actions. In No. 52368, Nellie Smallwood, individually, brought an action for the wrongful death of her husband, Isaac L. Smallwood, against Dr. Donald S. Bickers and West Paces Ferry Hospital. In No. 52369, Nellie Smallwood in her capacity as administratrix of the estate of Isaac L. Smallwood sued the same defendants for negligence in treating Isaac L. Smallwood. Both complaints allege that Mr. Smallwood's death on July 29, 1973 was occasioned by the negligence of various people involved in the operative procedures and treatment while he was under the care of Dr. Bickers and employees of West Paces Ferry Hospital.

The defendants, after answering, moved for summary judgment based upon two grounds. First, that Nellie Smallwood is not the lawful widow of Isaac L. Smallwood; thus, she is not entitled to bring an action for the wrongful death, pursuant to Code Ann. § 105-1302 (Ga.L.1973, p. 488). Second, Mrs. Smallwood has received 'satisfaction' by settlement for the death of Isaac Smallwood and there being but one cause of action, appellant is not entitled to recover.

The trial judge granted the motions for summary judgment on both grounds and appeal followed. Held:

1. It is contended that the plaintiff was not the deceased's wife, so that she might maintain an action for wrongful death under Code Ann. § 105-1301 et seq. In 1948, the deceased and the plaintiff entered into a ceremonial marriage. It appears, however, that in 1937, the deceased and Emma Smallwood (hereinafter referred to as Emma) were married. On February 23, 1953, Emma and the deceased were divorced in Rabun Superior Court. The proceedings culminating in the divorce were instituted against the decedent as an out-of-state resident. The decree forbade the deceased from remarrying. Plaintiff, by affidavit, related that from 1951 until sometime in 1953 that she and the deceased lived together as husband and wife in Alabama. Plaintiff and the deceased cohabited from 1948 until the time of his death in 1973.

It is contended by the defendants in this case that the ceremonial marriage between the plaintiff and the deceased was a nullity, that from the period between 1948 and 1953 they were unable to enter into a valid common law marriage and that after the divorce decree in February 1953 they were also prevented from entering into a common law marriage by the disability imposed upon the deceased. See Baker v. Baker, 168 Ga. 478, 148 S.E. 151; Bell v. Bell, 206 Ga. 194, 198, 56 S.E.2d 289; Gary v. Johnson, 210 Ga. 686, 82 S.E.2d 651.

The divorce decree in question recited that the deceased lived outside the State and this is supported by the affidavit of the plaintiff that they were residing outside the state from 1951 until 1953. On summary judgment we, of course, construe the proof offered in favor of the party opposing the motion. Peachtree Bottle Shop v. Bessemer etc. Corp., 134 Ga.App. 729, 731, 215 S.E.2d 692.

It has been pointed out in several cases with regard to the disability imposed under Code Ann. § 30-122 (Ga.L.1946, pp. 90, 93; 1960, pp. 1024, 1025) that such disability had no extra-territorial effect. Montgomery v. Gable, 61 Ga.App. 859(1), 7 S.E.2d 426; Brown v. Sheridan, 83 Ga.App. 725, 728, 64 S.E.2d 636; Bituminous Casualty Corp. v. Wacht, 84 Ga.App. 602, 604, 66 S.E.2d 757. Hence, the party upon whom the disability was imposed might enter into a valid marriage outside the State of Georgia and return to the State of Georgia with a marriage that would be recognized in this state. Brown v. Sheridan, 83 Ga.App. 725, 64 S.E.2d 636, supra. That being true, it is clear that the evidence failed to establish that the plaintiff and the deceased did not establish a valid common law marriage after the divorce decree and during the time that they resided in Alabama. The defendants were not entitled to summary judgment based on the contention that the evidence shows, as a matter of law, that the plaintiff was not the wife of the deceased.

2. It is urged that the plaintiff executed a release and settlement with certain parties who are not involved in the present suit; that since this is a wrongful death action and only one cause of action is involved that the settlement and release serves to also release the present defendants who occupy the status of joint tortfeasors. In support of this proposition, the defendants cite Gilmore v. Fulton-DeKalb Hosp. Auth., 132 Ga.App. 879, 209 S.E.2d 676. They distinguish the opinion in Knight v. Lowery, 228 Ga. 452, 185 S.E.2d 915, on the grounds that, even though their suits were allowed against the doctor and hospital after release as to third parties, that factual situation did not involve a wrongful death action, but involved a suit for damages and injuries resulting from an automobile collision.

In our view, we do not reach the question posed until a determination is made as to the effect of the instrument in question. Our courts have made a distinction between a covenant not to sue and a release. The intendment of a covenant not to sue is to release only certain parties and to leave the other parties still subject to suit. Register v. Andris, 83 Ga.App. 632, 64 S.E.2d 196; Doster v. C. V. Nalley, Inc., 95 Ga.App. 862, 99 S.E.2d 432; Henderson v. Garbutt, 121 Ga.App. 291, 173 S.E.2d 445. In construing an instrument to determine whether it constitutes a release or a covenant not to sue, the intention of the parties is controlling. Harmon v. Givens, 88 Ga.App. 629, 632(2), 77 S.E.2d 223....