56 S.E.2d 299 | Ga. Ct. App. | 1949
1. The court is evenly divided on the question whether an action lies in favor of a married woman to recover from a tort-feasor for injuries to her husband allegedly resulting in the loss of consortium.
2. The facts alleged do not set forth a cause of action for negligence against the defendants.
The views of Sutton, C. J., MacIntyre, P. J. and Worrill, J., to the effect that no such action will lie, are are 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 reasoning mainly 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 *484
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; 5 A.L.R. 1049; 37 A.L.R. 897; 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, sec. 693; 13 R.C.L. p. 1443, sec. 493. The Supreme Court of North Carolina in the case of Hipp v.
Dupont de Nemours Co.,
The views of Felton, Gardner and Townsend, JJ., to the effect that such an action will lie, are as follows: While there may be good reasons for denying a wife a right to sue for loss of consortium due to a negligent injury to her husband, we do not agree with the reasons which the courts seem to have unanimously adopted. First, it is said that a wife had no such right at common law and the married women's acts confer none eo nomine. We agree with both of these statements. However, though the act of 1866 gives no such right of action eo nomine, the courts of this and other States hold that a wife has a cause of action for a wilful destruction of or a wilful injury to her consortium rights, despite the fact that no statute gives the right. At common law a wife could not sue in trover for a horse, but it was because she could not own a horse. Without an enabling statute she may now recover her horse, even from her husband *485
Code § 53-502 provides: "All the property of the wife at the time of her marriage, whether real, personal, or choses in action, shall be and remain the separate property of the wife; and all property given to, inherited, or acquired by the wife during converture shall vest in and belong to the wife, and shall not be liable for the payment of any debt, default, or contract of the husband. (Acts 1866, pp. 146, 147)." See also Code § 2-2801. The courts which give the right of action to the husband deny it to the wife. If it is not too indirect and remote as to a husband, neither is it so as to a wife. The right in the wife is just as valuable to her as it is to the husband. A husband's recovery for his loss is not a recovery of his wife's loss. If the wife suffered loss of a valuable right the common law would have given her a cause of action. "A statutory right cannot change except by action of the lawmaking power of a state. But it is the boast of the common law that `its flexibility permits its ready adaptability to the changing nature of human affairs.' So that, whenever, either by the growth or development of society, or by the statutory change of the legal status of any individual, he is brought within the principles of the common law, then it will afford to him the same relief that it has theretofore afforded to others coming within the reason of its rules. If the wrongs of the wife are the same in principle as the wrongs of the husband, there is now no reason why the common law should withhold from her the remedies it affords to the husband." Flandermeyer v.
Cooper,
2. Construing the petition most strongly against the plaintiff on demurrer the petition is construed to mean that the defendants employed an independent contractor to paint the smokestack; that so much of the premises as were necessarily used for the purpose of painting the smokestack were placed in the exclusive possession of the contractor and that the defendants did not retain the right to direct or control the time and manner of executing the work. The petition alleged that the work was being done in a manner customary with painters but it did not allege that the defendants knew what that manner was. Under the facts alleged, and in view of the failure to allege other facts, we do not think that the petition alleges facts showing a duty on the defendants' part to warn the servant of an independent contractor as to the condition of the smokestack. Presumably the independent contractor was employed for his superior knowledge of and experience with smokestacks and possessed the skill necessary to determine the condition of the smokestack. Furthermore, if it could be said that the duty to procure inspection by an expert is the duty of ordinary care, if it is for one party, it is the same for another, and the parties had equal means to discover the defects. Our decisions seem to predicate the non-liability of owners of property, or contractees, to the employees of independent contractors, under circumstances where the work is free from the direction and control of the owner, or contractee, and possession of the premises is not retained by the contractee, either in whole or in part, on the fact that the servants of the contractor, or others coming upon the premises, at the invitation of the independent contractor, are invitees of the independent contractor and not of the contractee. Butler v. Lewman,
The court did not err in sustaining the demurrer to the petition on the ground that it alleged no actionable negligence against the defendants.
Under the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, page 232, Code, Ann. Supp., § 24-3501) this case was considered and decided by the court as a whole.
Judgment affirmed. Sutton, C. J., MacIntyre, P. J., andGardner, Townsend, and Worrill, JJ., concur.