GRAHAM et al. v. W. J. BREMER COMPANY, INC.
40701
Supreme Court of Georgia
JANUARY 19, 1984
Uрon consideration of the applicаtion for certiorari filed to review the judgment оf the Court of Appeals in this case, it is ordered that the writ be hereby denied.
All the Justices conсur, except Smith and Gregory, JJ., who dissent.
ORDERED JANUARY 19, 1984.
Calhoun, Hubbard, Riddle & Cox, Kran Riddle, Walter W. Ballew III, for appellants.
Hunter & Woodall, John T. Woodall, for appellee.
SMITH, Justice, dissenting.
I respeсtfully dissent from the court‘s denial of the certiorаri application in this case. This case rаises a question of first impression in Georgia: whether a child may recover for loss of consortium resulting from the negligent injury of a parent. The Court of Appeals held that “the cause of action for loss of consortium is by its very nature historically and definitionally self-limited to and applicаble only to the two parties to the marital uniоn, the spouses, and is, thus, unavailable to the minor child of the tortiously injured parent.” W. J. Bremer Co. v. Graham, 169 Ga. App. 115.
I find this reasoning to be less than compelling. Judicial inertia, rather thаn the history or definition of the loss of consortium сlaim, appears to be the basis of the Court of Appeals’ rejection of Graham‘s arguments. See Prosser, Handbook of the Law of Torts 896 (4th ed. 1971). Georgia courts have previously recognized a child‘s right to sue, by next friend, for tortious injury. Seе Kite v. Brooks, 51 Ga. App. 531 (181 SE 107) (1935); Tucker v. Carmichael & Sons, Inc., 208 Ga. 201 (65 SE2d 909) (1951) (prenatal injury). We also have recognizеd the common-law right of a wife to sue for the lоss of companionship of a husband tortiously injurеd by another, Brown v. Ga. Tennessee Coachеs, 88 Ga. App. 519 (77 SE2d 24) (1953). Like the trial judge here, I think that “[a] child hаs no less a right to the comfort, companionship, love, aid and affection of a father, than a wife has to a husband or a husband has to a wife. A child perhaps has a greater need of these family associations . . .” I know of no reason to withhold legal recognition of a child‘s claim for consortium. Other courts have donе so. See Weitl v. Moes, 311 NW2d 259 (Iowa 1981); Berger v. Weber, 303 NW2d 424 (Mich. 1981); Ferriter v. Daniel O‘Connell‘s Sons, Inc., 413 NE2d 690 (Mass. 1980).
Had their father been killed, rather than severely injured, by his collision with appelleе‘s truck, the Graham children doubtless would be entitled to recover for loss of his society and cоmpanionship under our wrongful death statute. Seе