Stoddard v. Woods

• Decision Date: 20 April 1976
• Docket Number: 3,No. 51949,Nos. 1,2,51949,s. 1
• Citation: 138 Ga.App. 770,227 S.E.2d 403
• Court: Georgia Court of Appeals
• Parties: Dorothy M. STODDARD v. Susan T. WOODS

Page 403

227 S.E.2d 403

138 Ga.App. 770

Dorothy M. STODDARD v. Susan T. WOODS.

No. 51949.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

April 20, 1976.

Rehearing Denied May 12, 1976.

Jim Hardy, Dunaway, Haas & Broome, Al Bridges, Atlanta, for appellant.

Neely, Freeman & Hawkins, Alan F. Herman, William Q. Bird, Atlanta, for appellee.

PANNELL, Presiding Judge.

Susan T. Woods 'on or about June 25, 1972' received physical injuries as the result of a collision between an automobile driven by her, and an automobile driven by Dorothy Maxine Stoddard. Woods brought an action against Stoddard on June 6, 1975, seeking recovery for medical, surgical, dental, Hospital and drug expenses incurred as a result of said injuries, and for lost wages caused therefrom. The defendant moved to dismiss the complaint on the grounds the two-year statute of limitation relating to personal injuries (Code § 3-1004) had run before the filing of the complaint. The trial judge overruled the motion and the defendant Stoddard appealed to this court. Held:

The trial judge erred. The decision in this case is controlled by the decision in Leggett v. Benton Brothers Drayage, etc., Co. et al., 138 Ga.App. 761, 227 S.E.2d 397, which overruled Robinson et al. v. Bomar, 122 Ga.App. 564, 177 S.E.2d 815; and Davis v. Patrick, 128 Ga.App. 677, 197 S.E.2d 743.

Judgment reversed.

BELL, C.J., DEEN, P.J., and QUILLIAN, CLARK, STOLZ, WEBB and MARSHALL, JJ., concur.

EVANS, J., dissents.

EVANS, Judge (dissenting).

Susan T. Woods, as plaintiff, sued Dorothy Stoddard, as defendant, for damages sustained in an automobile wreck, including: medical expense, surgical expense, dental expense, hospital expense, drug expense, future medical expense, and lost wages.

The suit was filed more than two years after the automobile collision, but which less than four years. Defendant's motion to dismiss the petition because, as he contended, it was barred by the two-year statute of limitation because it was for 'personal injuries,' was overruled, and defendant appeals.

Was the petition subject to motion to dismiss? That is the sole question for determination here.

In Pinkerton Nat. Detective Agency, Inc. v. Stevens, 108 Ga.App. 159, at page 163, 132 S.E.2d 119, at page 122 a nine-judge court held: 'Insofar as this action seeks to recover medical expenses, this is a property right subject to a four-year statute of limitation.' (Emphasis supplied.) In Krasner v. O'Dell, 89 Ga.App. 718(2), 80 S.E.2d 852 it is held that medical expense of a child, for which recovery is sought by the father, are elements of damages to the father's property rights, which case is cited in Pinkerton, supra.

again, in Davis v. Patrick, 128 Ga.App. 677, 678, 197 S.E.2d 743, 744 this court held: 'However, since she also is seeking damages for medical expenses and loss of earnings and/or earning capacity, this is a claim for damage to personalty and the four year statute applies.' (Emphasis supplied.) This case was written by Chief Judge Bell, and Judges Deen and Quillian concurred. And in Robinson v. Bomar, 122 Ga.App. 564, 565(5), 177 S.E.2d 815, 817(5), this court held: '. . . but even though the personal injury claim is barred, an action for damage to personal property, loss of wages, or for medical expenses incurred is maintainable . . .' (Emphasis supplied.) and at page 568(5), 177 S.E.2d at page 819, it is stated: 'These items are for injury to personalty and the statute of limitations as to them is four years.' (Emphasis supplied.) This case was by Judges Eberhardt, Jordan and Pannell.

Code § 3-1002 provides that actions for injuries to personalty shall be brought within four years after the right of action accrues. The items sued for here, according to the above authorities, are clearly personalty, and are within the 4-year statute.

Defendant cites Central of Ga. Ry. Co. v. Harbin, 132 Ga.App. 65, 66, 207 S.E.2d 597, but there the action was not for medical expense nor for lost wages, but it was for injuries to the person, loss of consortium, and damages to the automobile. The damages to the car were not questioned but the entire discussion and decision is as to loss of consortium, and is therefore inapplicable to the case at bar.

But the majority opinion says that the quite recent case of Leggett v. Benton Brothers Drayage, etc., Co., 138 Ga.App. 761, 227 S.E.2d 397 overruled Robinson v. Bomar, 122 Ga.App. 564, 177 S.E.2d 815, supra, and Davis v. Patrick, 128 Ga.App. 677, 197 S.E.2d 743, supra, and requires a decision to the effect that lost wages and medical expenses are barred after two years (see my dissent). But overruling those two cases is not enough! It did not overrule the nine-judge court decision in the case of Pinkerton Nat. Detective Agency, Inc. v. Stevens, 108 Ga.App. 159, at 163, 132 S.E.2d 119, supra, and that case stands as the oldest case (and a nine-judge case, let us not forget) and the younger case must give way to the oldest case, under the rule of stare decisis. See Code Ann. § 24-3501; Fidelity-Phenix Ins. Co. v. Mauldin, 123 Ga.App. 108, 111, 179 S.E.2d 525; Nichols v. Hampton, 198 Ga. 327, 328(1), 31 S.E.2d 659; Forehand v. Moody, 200 Ga. 166, 179, 36 S.E.2d 321.

We are not unmindful...