Opinion
41285, 41291.
SUBMITTED MAY 4, 1965.
DECIDED MAY 13, 1965.
Tort; automobile collision. Polk City Court. Before Judge Flournoy.
Henry A. Stewart, Sr., for plaintiff in error.
Rogers, Magruder Hoyt, Floyd B. Chaite, contra.
Where in a tort action by a married woman it is alleged that she incurred hospital and medical expenses and she testifies that she has paid a part of such expenses and has contracted to pay the remainder of them it is error to exclude such element of damages from the jury's consideration.
SUBMITTED MAY 4, 1965 — DECIDED MAY 13, 1965.
Mrs. Mary Frances McClarty sued James Porter Hunt to recover for injuries and damages sustained as a result of a "rear end" automobile collision which occurred when the defendant allegedly struck the rear of the plaintiff's automobile while the same was stopped in obedience to a traffic control device (red light) in Cedartown, Ga. Paragraph 18 of the plaintiff's petition alleged: "For the treatment of her said injuries, plaintiff has incurred expenses for hospital, drugs, etc., and surgeon's bills, totaling $650.00 and will continue to incur additional such expenses in the future." On the trial of the case the plaintiff sought to introduce the bills for drugs, hospital and medical services, as well as to testify that she was personally bound for such payments and had paid a part thereof. The trial court permitted testimony as to the amounts of such bills but refused to permit the bills to be tendered in evidence and ruled: "I am ruling that she is not allowed to claim the hospital expenses." In instructing the jury the court charged the jury in part: "I charge you in paragraph 18 she says that for the treatment of her injuries she has incurred expenses for hospitals, drugs and so forth, in a named amount and that she will continue to incur expenses. I have taken any consideration of any expenses that she might have incurred, that she alleges that she has incurred, from your consideration. Her husband has a right of action for these expenses under Georgia law, unless there are some unusual circumstances surrounding the situation that he would not be liable for any expenses incurred for hospital bills and other such bills of hers. So you will not consider the allegations of paragraph 18, and if there is any evidence as to these allegations you will disregard that evidence as applying to the allegations of paragraph 18." The jury returned a verdict for the plaintiff and thereafter the plaintiff moved for a new trial on the usual general grounds and 13 special grounds. The trial court granted the plaintiff the new trial on 3 special grounds, as dealt with above, and the defendant now assigns error on the grant of such new trial on the designated special grounds, and in a cross bill of exceptions the plaintiff assigns error on the judgment denying a new trial on the remaining special grounds.
1. "In Georgia R. Bkg. Co. v. Tice, 124 Ga. 459, 461 ( 52 S.E. 916, 4 AC 200), it was held: `When a married woman is injured by the wrongful conduct of another, two different causes of action may arise: the one in her favor for her own pain and suffering, and the other in favor of the husband for the loss of his wife's services and for expenses incurred as a consequence of the injuries to her. These causes of action are separate and distinct, and in favor of different parties.'" Complete Auto Transit, Inc. v. Floyd, 214 Ga. 232, 235 ( 104 S.E.2d 208). Therefore, "The plaintiff could not recover for expenses incurred by her in consequence of the injury, unless actually paid by her . . . or that she personally undertook to pay these expenses or in any manner bound herself to do so." Lewis v. City of Atlanta, 77 Ga. 756 (4 ASR 108).
The plaintiff's petition alleged that she "incurred" such expenses and she testified that she contracted personally to pay the same out of her separate earnings, Code Ann. § 53-512. Accordingly, the trial court did not err in granting a new trial on the 3 special grounds which had excluded from the jury's consideration an item of damages which the jury was authorized to consider.
2. The defendant in error expressly abandoned the cross bill of exceptions in the event the judgment on the main bill of exceptions was affirmed. Accordingly, the cross bill of exceptions is dismissed.
Judgment affirmed on main bill; cross bill dismissed. Eberhardt and Pannell, JJ., concur.