Opinion
45525.
SUBMITTED SEPTEMBER 15, 1970.
DECIDED OCTOBER 13, 1970.
Action for damages. Long Superior Court. Before Judge Caswell.
Richard D. Phillips, for appellant.
Adams, Adams, Brennan Gardner, John W. Minor, Edward T. Brennan, for appellee.
Where a person sustains personal, physical and property damage which grow out of a single wrongful or negligent act, the tort to the person and property constitutes a single cause of action which should be presented for determination in a single suit, unless the defendant consents to the splitting of the cause of action.
SUBMITTED SEPTEMBER 15, 1970 — DECIDED OCTOBER 13, 1970.
For the purposes of appeal, the parties here stipulated that the plaintiff (appellant) sought damages in the amount of $10,000 by reason of personal injuries he received in an automobile collision with the defendant (appellee) and thereafter recovered a verdict of $10,000 against the defendant, which has been paid. Thereafter, the plaintiff, in another complaint involved in this appeal, asked $10,000 damages against the same defendant on account of certain named injuries received by plaintiff's wife, who was a passenger in the motor vehicle which was involved in the same collision. The defendant pleaded the former recovery by the plaintiff in the prior suit as a bar to the instant suit, which plea the court sustained and dismissed the plaintiff's complaint. The only issue in this case is, where a man and his wife are injured by a defendant in an automobile collision, whether or not he may institute one suit for injuries to himself, and after obtaining a recovery, institute a separate suit against the same defendant for the injuries to his wife.
The appeal is from the judgment of the lower court, sustaining the plea in bar of the former recovery, and dismissing the complaint.
The sole question for decision here is whether a husband's action for loss of consortium due to injuries to his wife, is a part of a single cause of action for personal injury and property damage, where all the elements of damage arise from a single occurrence. In order for a former recovery to be pleaded in bar of a subsequent action, the two suits must be between the same parties and on the same cause of action, and the test of identity of cause of action is whether the same evidence will support both. See Code § 3-607; Underwood v. Underwood, 139 Ga. 241 ( 77 S.E. 46). It has been held numerous times in this State that a single wrongful or negligent act, which injures both one's person and property, gives but a single cause of action, and a settlement of the property damages will, where pleaded, bar an action on account of injuries to the person where both items of damage are the result of a single occurrence. See Ga. R. Power Co. v. Endsley, 167 Ga. 439 ( 145 S.E. 851, 62 ALR 256); Gregory v. Schnurstein, 212 Ga. 497 ( 93 S.E.2d 680); James v. Emmco Ins. Co., 71 Ga. App. 196 ( 30 S.E.2d 361); Krasner v. O'Dell, 89 Ga. App. 718 (1) ( 80 S.E.2d 852); Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342 ( 173 S.E.2d 723). While counsel state that no reported Georgia cases clearly show what a husband's damages on account of injuries received by his wife (loss of consortium, etc.) may include, yet it has been held in the Krasner case, supra, that medical expenses incurred for treatment of a child's injuries and loss of the child's services, when caused by the single tortious act of another, are elements of damage to the father's property rights and thus give rise to a cause of action in the father. The Krasner case cited Ga. R. Power Co. v. Endsley, supra, and likewise the cases of Farmer v. Baird, 35 Ga. App. 133 ( 174 S.E. 260); Silvertooth v. Shallenberger, 49 Ga. App. 133 ( 174 S.E. 365); and Kelly v. McCoy, 85 Ga. App. 514 ( 69 S.E.2d 652). We see no difference in the injuries received by the parent as to the loss of a child's services and treatment of the minor child's injuries, and those which would be involved on account of damages resulting from the injuries to the wife. Accordingly, based on the authority of the cases cited, the court did not err in sustaining the plea and dismissing the complaint. The error enumerated is not meritorious.
Judgment affirmed. Hall, P. J., and Deen, J., concur.