50212, 50213. JARRETT v. PARKER (two cases).
Court of Appeals of Georgia
JUNE 18, 1975
135 Ga. App. 195
MARSHALL, Judge.
ARGUED MAY 21, 1975
Gershon, Ruden, Pindar & Olim, Jay E. Lobe, for appellee.
MARSHALL, Judge.
Carol Parker, while driving her husband‘s automobile, was involved in a collision with an automobile driven by Jarrett. Subsequently, Carol Parker filed suit for damages against Jarrett for personal injuries alleged to have been sustained as a result of the defendant‘s negligence. Contemporaneously therewith, Dallas Parker, the plaintiff‘s husband, filed suit for damages against defendant, claiming damages for his automobile, his wife‘s medical expenses, and loss of consortium, all as a result of the defendant‘s negligence. Dallas Parker was not in the vehicle operated by his wife at the time of the collision. The two cases were tried together. At the conclusion of the evidence, the jury returned a verdict for the defendant in the case brought by Carol Parker for her personal injuries. In the case brought by Dallas Parker the jury returned a verdict, as follows: “We the jury find for the plaintiff in the amount of $950, car - $350, medical expenses - $600.”
Both plaintiffs filed separate motions for new trial, and the defendant filed a motion for judgment notwithstanding the verdict in the Dallas Parker case. The trial court granted both plaintiffs’ motions for a new trial on the special ground that the verdict against the wife and the verdict in favor of the husband were inconsistent and illegal, and because the court had charged erroneously to the effect that the jury might find for one plaintiff and not for the other plaintiff. The defendant‘s motion for a judgment notwithstanding the verdict was denied. These orders were certified for immediate review. The appellant enumerates as error the
1. Even though this be the first grant of a new trial, the same is reviewable since the motions for new trial were granted solely upon special grounds and not upon the general grounds.
2. Except in plain, palpable and indisputable cases, all questions of negligence, contributory negligence, and cause and proximate cause, and of whose negligence or of what negligence constitutes the proximate cause of an injury are for jury determination. Long Const. Co. v. Ryals, 102 Ga. App. 66 (1) (115 SE2d 726); Montgomery v. Southern R. Co., 78 Ga. App. 370 (1d) (51 SE2d 66). Under the evidence and law applicable, these cases were for jury determination, as the evidence was sufficient to authorize a finding either for the plaintiff or the defendant. The court did not err in denying the motion for a judgment notwithstanding the verdict.
3. We now come to the controlling question here. As these two separate cases were tried together before the same jury, at the same time, and with the same evidence, was the jury obliged to find for both plaintiffs or against both plaintiffs?
There seems to be no question that under the law in Georgia one spouse is not a privy of the other spouse‘s prior suit for personal injuries within the meaning of
However, in those cases, and in others (Owens v. Williams, 87 Ga. App. 238 (73 SE2d 512); Fenster v. Gulf States-Ceramic, 124 Ga. App. 102, 106 (182 SE2d 905)), the husband‘s and wife‘s suits were tried separately at different times, before different juries. Appellant urges us
As we stated in White v. Hammond, in 129 Ga. App. 408, 411 (199 SE2d 809), “If the cases were tried separately, the evidence would be presented to twelve different people at each trial. Each jury would hear the evidence - it might be substantially the same at both trials, but it would not be identical. Each jury would observe the witnesses’ way and manner of testifying at each trial and form an opinion on the credibility of the witnesses and the weight to be given their testimony - here again, there may be great similarity, but there would not be exact duplication. This is true because as no two people are exactly alike so no two juries are exactly alike. Witnesses do not offer exactly the same testimony in exactly the same manner when testifying at separate trials. Perhaps of even more significance, at separate trials there are different juries, hearing the testimony with different ears, observing the witnesses with different eyes and interpreting and evaluating the evidence with different minds. This, as much as anything, explains and justifies the sometime inconsistent verdicts based on ‘the same facts’ by different juries. However, in this case, and in Nickle, supra, the same jury heard the evidence in both cases. The witnesses testified only once. Their testimony was exactly the same in both cases. Their mode and manner of testifying was exactly the same in both cases. The same jury weighed the evidence and the credibility of the witnesses, and came up with unreconcilable verdicts. This type of result breeds an inconsistency into our system that undermines its foundation through destruction of its credibility. Nickle v. Armstrong Furniture Co., 107 Ga. App. 362, supra, is expressly disapproved insofar as it allows inconsistent verdicts from the same jury.”
The doctrine of stare decisis does not freeze a decision into our law in perpetuity. Our law is a constantly growing, evolving, developing body. This is particularly the case where the precedent relied upon is a single case decided as late as 1963, which has been cited only once to
“[T]he principle of stare decisis is effective in this State and should be followed unless and until the older decisions on a question have been overruled. If it is to be argued that cases can not be overruled because of stare decisis, then no case could ever be overruled. Certainly, this is not a sound position.” Capers v. Ball, 211 Ga. 502, 506 (5) (87 SE2d 85). After extolling the virtues of stare decisis, the Supreme Court in Almand v. Almand & George, 95 Ga. 204, 207 (22 SE 213) held that, “We do not mean to say that every decision, however erroneous, should be permitted to stand, nor ought reverence for a mere precedent control the judgment of a court of last resort.” In Robison v. Beall, 26 Ga. 17, 59-62, that court discussed at length what decisions a court is not bound to follow. In Aultman v. Spellmeyer, 111 Ga. App. 769, 773 (143 SE2d 403), Judge Bell aptly summarized the duty of the courts in this regard, thusly: “In City of Atlanta v. First Presbyterian Church, 86 Ga. 730, 733 (13 SE 252, 12 LRA 852) Chief Justice Bleckley wrote ‘Courts, like individuals, but with more caution and deliberation, must sometimes reconsider what has been already carefully considered, and rectify their own mistakes.’ And again in another case the same Chief Justice said, ‘Some courts live by correcting the errors of others and adhering to their own... At the peril of their lives they must discover error abroad and be discreetly blind to its commission at home.’ Ellison v. Georgia R. Co., 87 Ga. 691, 695-696 (13 SE 809). These admonitions are but another way of saying honestly that appellate courts are courts for the correction of errors including their own.”
We conclude that the jury verdicts here were inconsistent, repugnant and illegal, because of the jury‘s award to the husband of his wife‘s medical expenses. In this case, the husband‘s cause of action for medical expenses and loss of his wife‘s services are wholly derivative from the wife‘s cause of action. See Bray v. Westinghouse Electric Corp., 103 Ga. App. 783 (120 SE2d 628); Hightower v. Landrum, 109 Ga. App. 510, 514 (136 SE2d 425). But, see dictum in Fenster v. Gulf States Ceramic, 124 Ga. App. 102, 106, supra. If the jury decided
Here, as in White, the jury was authorized to find that the wife had not been injured by the defendant‘s negligence but that the husband had been, in the form of damages to his car. The evidence in this case shows that Carol Parker‘s injury was primarily to her back and was substantially subjective in nature. The evidence of her injury, though it may authorize a verdict in her favor, does not demand such a verdict. “[N]egligence without injury or damage gives no cause of action; to support the action there must be not only the negligent act, but a consequential injury, the injury being the gravamen of the charge.” 1 AmJur2d 597, Actions, § 69. Therefore, it was not necessary for the jury in this case to award damages to the plaintiff wife even though it may find that the defendant was negligent, where it is authorized to find that that negligence did not cause her an injury. See Krasner v. Lester, 130 Ga. App. 234 (202 SE2d 693); Brown v. Nutter, 125 Ga. App. 449 (5) (188 SE2d 133); Brown v. Wingard, 122 Ga. App. 544 (4) (177 SE2d 797); Levine v. Nowell, 115 Ga. App. 79 (153 SE2d 729).
That such result encourages multiple litigation is a problem that must be addressed to the legislature. If consolidation for trial of both the husband‘s and wife‘s
Judgment affirmed. Bell, C. J., Deen, P. J., Quillian, Clark, Stolz and Webb, JJ., concur. Pannell, P. J., concurs in the judgment only. Evans, J., dissents.
ARGUED FEBRUARY 10, 1975 - DECIDED MAY 23, 1975 - REHEARING DENIED JUNE 19, 1975
N. Forrest Montet, Malcolm P. Smith, for appellant.
Robert B. Struble, for appellee.
EVANS, Judge, dissenting.
Carol Parker sued E. S. Jarrett for personal injuries arising out of an automobile wreck. Dallas Parker, her husband, sued E. S. Jarrett because of the same automobile wreck, alleging as damages his loss of his wife‘s consortium, medical expenses, and automobile damages.
By agreement the two separate cases were tried before the same jury, at the same time. The trial court charged the jury that they would consider the two cases separately, and they were empowered to return a verdict for one plaintiff, and against the other; or for both plaintiffs, or against both plaintiffs, in separate verdicts. The jury returned a verdict in favor of the plaintiff husband for $950, and against the plaintiff wife.
Both the plaintiffs filed separate motions for new trial, and the trial court entered one order in which he held that a new trial was granted in each case, but upon special grounds, to wit: because the verdict against the wife and the verdict in favor of the husband were inconsistent and illegal; and because the court had charged erroneously to the effect that the jury might find for one plaintiff and not for the other plaintiff.
The majority hold that even though the separate cases were consolidated for trial only and the jury was instructed to return separate verdicts, nevertheless under
1. I agree fully with Divisions 1 and 2 of the majority opinion, which merely recite clearly established law.
2. We now come to the controlling question here. As these two separate cases were tried together before the same jury, at the same time, and with the same evidence, was the jury obliged to find for both plaintiffs or against both plaintiffs? Could the jury split its verdict and find for one plaintiff and against the other plaintiff?
3. There is no privity between husband and wife as to separate suits by each of them, because of the husband‘s injuries, or because of the wife‘s injuries, arising out of the same transaction and involving the same negligence. This was plainly held in Blakewood v. Yellow Cab Co., 61 Ga. App. 149 (3, 4) (6 SE2d 126); Owens v. Williams, 87 Ga. App. 238, 243 (73 SE2d 512); Russ Transport, Inc. v. Jones, 104 Ga. App. 612 (122 SE2d 282); Fenster v. Gulf States Ceramic, 124 Ga. App. 102, 106 (182 SE2d 905). For illustration, if the wife is injured, she may lose her suit for personal injuries, while the husband may win his suit for loss of her services and for medical expenses. Neither case is determinative of or res judicata as to the other.
4. This matter has been clearly and concisely decided in the case of Nickle v. Armstrong Furniture
The Nickle case was followed by this court in Purdy v. Norrell, 111 Ga. App. 546 (142 SE2d 311), involving separate suits by a mother and her minor son, which cases were by formal order consolidated and tried together. The mother won her case, and the son lost his case, and it was held that the verdicts were legal verdicts.
5. As neither of the above cases has been overruled, they stand as controlling authority under the principle of stare decisis, and must be followed. Cauble v. Weimer, 101 Ga. App. 313, 316 (113 SE2d 641); Drury v. State, 211 Ga. 888, 889 (89 SE2d 513); Eschen v. Roney, 127 Ga. App. 719, 725, 726 (194 SE2d 589).
6. But the majority cite and rely strongly upon a more recent case of this court, to wit, White v. Hammond, 129 Ga. App. 408, 411, 412 (199 SE2d 809), where husband and wife brought separate suits, which were tried together, because of injuries to the wife. The wife lost her case, and the husband won his case, and this court held that these verdicts were inconsistent and therefore illegal and that “the trial judge erroneously failed to sustain the plaintiffs’ joint motion for new trial as to both defendants in both cases, and a new trial is granted.”
The decision in the White case could not have been legal because the Nickle case stood unreversed. In White,
7. Therefore, the question now confronting this court is whether we will stand by Nickle, or stand by White, and overrule Nickle. Nickle appears to be grounded on sound reasoning. But the majority now seek to overrule it.
8. The learned trial judge in this case correctly charged the jury that split verdicts might be rendered, and correctly tried the case on this theory. This is a situation where foresight was better than hindsight. If the trial court had granted the motions for new trial on general grounds, this court would have been powerless to interfere.