As we see the real issue, by applying the principles of binding precedent to the facts of this case, we conclude the failure to apply the principles of res judicata to this case has neither denied Norris or his wife their day in court nor denied them due process of law. The doctrine of binding precedent apparently had its genesis in Bray v. Westinghouse Elec. Corp., 103 Ga. App. 783 ( 120 S.E.2d 628). The Bray case at 103 Ga. App. 783, supra, was preceded by a suit by Bray's wife also against Westinghouse but for loss of consortium.

The foregoing acreage is part of a 22.059-acre tract of land, which was the subject property in City of Smyrna v. Ruff, 240 Ga. 250 ( 240 S.E.2d 19) (1977), wherein it was held that, under the evidence of record in that case, the single-family residential zoning classification of the property resulted in a taking of property without just compensation and thus was unconstitutional under Barrett v. Hamby, 235 Ga. 262 ( 219 S.E.2d 399) (1975). In the present case, the appellants contend that this holding in Ruff is a "binding precedent" here. Standard Oil Co. v. Harris, 120 Ga. App. 768 (1) ( 172 S.E.2d 344) (1969); Bray v. Westinghouse Electric Corp., 103 Ga. App. 783 ( 120 S.E.2d 628) (1961). The appellants also contend that, under criteria enunciated in Guhl v. Holcomb Bridge Rd. Corp., 238 Ga. 322 ( 232 S.E.2d 830) (1977), the evidence here shows in a clear and convincing manner that the existing zoning causes them a significant economic detriment and bears an insubstantial relationship to the public health, safety, morals, or general welfare.

The Court of Appeals based its holding that the Norrises are barred not on res judicata or collateral estoppel but, rather, on the "doctrine of binding precedent." This precept, first enunciated by the Court of Appeals in Bray v. Westinghouse Electric Corp., 103 Ga. App. 783 ( 120 S.E.2d 628) (1961), was explained in Lowe Engineers v. Royal Indem. Co., 164 Ga. App. 255, 259 ( 297 S.E.2d 41) (1982), as follows: "Succinctly stated, that doctrine provides where the issue of liability has previously been adjudicated with negative results for a party contending for the same rights in subsequent litigation, the former judgment, although not res judicata, estoppel by judgment nor collateral estoppel as to the present action because the parties are different, does constitute binding precedent, inasmuch as the controlling issue . . . has already been adjudicated under substantially similar allegations."

Succinctly stated, that doctrine provides where the issue of liability has previously been adjudicated with negative results for a party contending for the same rights in subsequent litigation, the former judgment, although not res judicata, estoppel by judgment nor collateral estoppel as to the present action because the parties are different, does constitute binding precedent, inasmuch as the controlling issue (i.e., the prior complaint was cognizable as a maritime claim because the employees were crew members on a vessel engaged on navigable waters of the United States) has already been adjudicated under substantially similar allegations. Bray v. Westinghouse Elec. Corp., 103 Ga. App. 783 ( 120 S.E.2d 628). See also Standard Oil Co. v. Harris, 120 Ga. App. 768 ( 172 S.E.2d 344) which authorizes the conclusion, in effect, at pp. 769-770, that in view of the results of the Arkansas verdict, a verdict in favor of Lowe against Royal on the same issue could not stand.

We are controlled by the following cases, where we held that the spouse is neither privy nor party to the injured plaintiff's cause of action insofar as consortium rights are concerned, and thus under principles of res judicata is not barred by a prior verdict in an earlier trial in favor of the defendant as to liability for tort to the injured party: Deese v. Parks, 157 Ga. App. 116 ( 276 S.E.2d 269); Rutland v. Fuels, 135 Ga. App. 143 ( 217 S.E.2d 167); Armstrong Furn. Co. v. Nickle, 110 Ga. App. 686 ( 140 S.E.2d 72); Russ Transport v. Jones, 104 Ga. App. 612 ( 122 S.E.2d 282); Owens v. Williams, 87 Ga. App. 238 ( 73 S.E.2d 512); and Blakewood v. Yellow Cab Co., 61 Ga. App. 149 ( 6 S.E.2d 126). Contra, Bray v. Westinghouse Electric Corp., 103 Ga. App. 783 ( 120 S.E.2d 628); and see Smith v. Tri-State Culvert Mfg. Co., 126 Ga. App. 508 ( 191 S.E.2d 92); Hightower v. Landrum, 109 Ga. App. 510 ( 136 S.E.2d 425); see also Ross v. Central R. c. Co., 59 Ga. 299; and Jones v. Beasley, 476 F. Supp. 116 (M.D. Ga.); Turner v. Southern R. Co., 437 F.2d 1352; Collins v. Seaboard C. R. Co., 516 F. Supp. 31. The rule is different where the injured person and the spouse combine their separate suits in one trial, for in that case we have said that where one jury has heard the same evidence on the same issue it cannot render inconsistent verdicts as might two separate juries.

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 Elec. Corp., 103 Ga. App. 783 ( 120 S.E.2d 628); Hightower v. Landrum, 109 Ga. App. 510, 514 ( 136 S.E.2d 425). When the jury found for the wife, it, in effect, determined that the defendant had caused her injury. The uncontradicted evidence shows that those injuries caused the husband to incur substantial medical expenses and the husband to lose to some extent his wife's services.

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 S.E.2d 628); Hightower v. Landrum, 109 Ga. App. 510, 514 ( 136 S.E.2d 425). But, see dictum in Fenster v. Gulf States Ceramic, 124 Ga. App. 102, 106, supra.

2. We recognize the validity of the doctrine of "binding precedent" as stated in Bray v. Westinghouse Electric Corp., 103 Ga. App. 783 ( 120 S.E.2d 628) and Standard Oil Co. v. Harris, 120 Ga. App. 768 ( 172 S.E.2d 344). Nevertheless, for the reasons presented in the foregoing division such doctrine should be applicable only where there has been a genuine determination by contest of the issues.

We agree with the majority that as to the right of Mr. White to recover for loss of consortium and for the medical expenses of his wife the action is derivative and dependent upon her right to recover. Bray v. Westinghouse Elec. Corp., 103 Ga. App. 783 ( 120 S.E.2d 628); Hightower v. Landrum, 109 Ga. App. 510, 514 ( 136 S.E.2d 425). However, since we conclude that the evidence here, when properly construed on appeal, authorized the jury to find that Mrs. White was not injured in the collision, and thus could not recover, it does not follow that Mr. White could not recover for the damage to his car, for the evidence authorized a finding that though both Mrs. White and Mr. Hammond were negligent, that of Mr. Hammond was the greater.

There it was settled that "the cause of decedent's death was his removal of the gas cap simultaneously with the application of compressed air to the fuel line by the defendant's [Bolden's] employee which caused gasoline to spew out at the cap onto the decedent and into his eyes, causing him to retreat backwards into the kerosene heater and ignite." This ruling, as a precedent which we must follow until and unless it is overruled (see Code § 6-1611; Joseph v. State, 148 Ga. 166 ( 96 S.E. 229)), eliminates any negligence on the part of the defendant Bolden as the cause of the event resulting in the death of Barnes and the injury of Miss Harris, and a verdict against him could not stand. Ross v. Central R. Bkg. Co., 59 Ga. 299; Bray v. Westinghouse Elec. Corp., 103 Ga. App. 783 ( 120 S.E.2d 628). "True law is indeed right reason, conformable to nature, pervading all things, constant, eternal... It cannot be one law for Rome and another for Athens, one thing today and another tomorrow."