If a tort shall be committed upon the person or reputation of the wife, the husband or wife may recover therefor; if the wife shall be living separate from the husband, she may bring an action for such torts and also torts to her children and recover the same to her use.
(Orig. Code 1863, § 1703; Code 1868, § 1745; Code 1873, § 1755; Code 1882, § 1755; Civil Code 1895, § 2475; Civil Code 1910, § 2994; Code 1933, § 53-511.)
Law reviews.- For comment criticizing McDade v. West, 80 Ga. App. 481, 56 S.E.2d 299 (1949), and the former common-law rule denying the wife an action for loss of consortium, see 1 Mercer L. Rev. 316 (1950). For comment suggesting grant of right of action to wife for loss of consortium with husband, in light of McDade v. West, 80 Ga. App. 481, 56 S.E.2d 299 (1949), see 12 Ga. B. J. 330 (1950). For comment on Brown v. Georgia Tenn. Coaches, Inc., 88 Ga. App. 519, 77 S.E.2d 24 (1953), allowing wife's recovery for loss of consortium of husband which resulted from personal injuries to him caused by defendant's negligence, see 16 Ga. B. J. 335 (1954).
JUDICIAL DECISIONS
Two distinct causes of action.
- 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. Georgia R.R. & Banking Co. v. Tice, 124 Ga. 459, 52 S.E. 916 (1905).
Wife may sue for any injury to her person or reputation. Martin v. Gurley, 201 Ga. 493, 39 S.E.2d 878 (1946).
Wife may sue in own name.
- A wife, although living with her husband, may sue and recover in her own name for a tort committed to her person causing physical injury to her. City of Atlanta v. Dorsey, 73 Ga. 479 (1884); Mayor of Athens v. Smith, 111 Ga. 870, 36 S.E. 955 (1900).
Wife may maintain in her own name action for slanderous words alleged to have been used of and concerning herself. Pavlovski v. Thornton, 89 Ga. 829, 15 S.E. 822 (1892).
Husband cannot recover damages for pain and suffering of his wife, that action is in the wife. Collins v. Martin, 157 Ga. App. 45, 276 S.E.2d 102 (1981).
Wife's physical injuries and attendant pain, suffering and nervous impairment are no part of her husband's cause of action, nor is her resultant nervousness and impatience, except insofar as it causes a loss of her services to him. Community Gas Co. v. Williams, 87 Ga. App. 68, 73 S.E.2d 119 (1952).
Expenses incurred as consequence of injury to wife.
- Married woman cannot recover for expenses incurred by her in consequence of an injury, unless actually paid by her, there being no testimony going to show that she was living separate from her husband, that she was a free trader, that she had any separate property, or that she personally undertook to pay these expenses or in any manner bound herself to do so. The married woman's law does not have the effect of giving her the right to recover for such expenses, without joining her husband in the action. Lewis v. City of Atlanta, 77 Ga. 756 (1886).
Wife's only recourse for recovery of medical expenses is through her husband, and the state of her health and her life expectancy must necessarily therefore be considered in determining the award of damages for her benefit. Old Dominion Freight Line v. Martin, 153 Ga. App. 135, 264 S.E.2d 585 (1980).
In the event of injury to the wife, the right to recover the expenses incurred for medical, hospital and funeral bills is not in her but in the husband, unless there are special circumstances, as when the wife contracts to be personally bound. Old Dominion Freight Line v. Martin, 153 Ga. App. 135, 264 S.E.2d 585 (1980).
Husband may recover loss of wife's services and consortium.
- Husband being presumed to be head of the house and responsible for his wife's necessary expenses, and being also entitled to the services, society, and consortium of his wife, these are the only proper elements of damage for which the plaintiff may sue in his capacity as husband. Community Gas Co. v. Williams, 87 Ga. App. 68, 73 S.E.2d 119 (1952); Collins v. Martin, 157 Ga. App. 45, 276 S.E.2d 102 (1981).
Measure of damages for wife's injuries.
- So long as the law vests only in the husband the right to sue for his wife's necessary medical expenses, the correct measure of such damages must allow for the recovery of what the evidence shows to be the anticipated expenditures for necessary and required care of the wife for the expectancy of her life. Old Dominion Freight Line v. Martin, 153 Ga. App. 135, 264 S.E.2d 585 (1980).
Injuries suffered before marriage.
- When a woman suffers a tortious personal injury, impairing or destroying her earning capacity, the cause of action arising therefrom becomes a "chose in action," and a part of her separate estate, notwithstanding her subsequent marriage, though the damages which under the law she would have been entitled to recover as a result of the tort may include compensation for loss of earning capacity, which the after-acquired husband would have been entitled to enjoy if it had not been previously destroyed by the tort. Wrightsville & Tennille R.R. v. Vaughan, 9 Ga. App. 371, 71 S.E. 691 (1911).
Wife's loss of ability to perform housekeeping duties is recoverable by husband if they are living together. McBowman v. Merry, 104 Ga. App. 454, 122 S.E.2d 136 (1961).
Recovery against husband.
- Under the statutory law of Georgia, a wife cannot recover from a husband with whom she is living in lawful wedlock, for a tort resulting from his negligent operation of an automobile in which they were riding at the time of the injury. Heyman v. Heyman, 19 Ga. App. 634, 92 S.E. 25 (1917).
Value of wife's services is a jury question to be estimated in the light of the evidence and their own observation and experience. Community Gas Co. v. Williams, 87 Ga. App. 68, 73 S.E.2d 119 (1952).
Trial courts may instruct jury to consider mortality tables as to wife's life expectancy so as to ascertain what future medical expenses are reasonably certain to accrue as the natural and proximate result of her injuries, for which her husband is entitled to recover damages. Old Dominion Freight Line v. Martin, 153 Ga. App. 135, 264 S.E.2d 585 (1980).
Fundamental requirement relating to recovery by mother for tortious injury to child is that mother be living apart from her husband. Peppers v. Smith, 151 Ga. App. 680, 261 S.E.2d 427 (1979).
Suit permitted by wife if husband abandons family.
- Under this section, a mother has a right of action for a tort which deprives a minor of his ability to render valuable services when the father has abandoned his family and all custody and control of the minor. Amos v. Atlanta Ry., 104 Ga. 809, 31 S.E. 42 (1898).
When a father has lost his parental power, as in the case of abandonment, it is well settled that the mother rather than the father is entitled to bring an action for loss of services and for medical expenses resulting from a tortious injury to the child, but this is not to say that the right of the mother to maintain an action is conditioned upon the loss of parental power by the father. Peppers v. Smith, 151 Ga. App. 680, 261 S.E.2d 427 (1979).
Abandonment not required.
- Although abandonment of family by husband may satisfy language of this section, there is no independent requirement of abandonment contained in this section. Peppers v. Smith, 151 Ga. App. 680, 261 S.E.2d 427 (1979).
Cited in Sessions v. Parker, 174 Ga. 296, 162 S.E. 790 (1932); McCallum v. Bryant, 93 Ga. App. 214, 91 S.E.2d 194 (1956); Smith v. Tri-State Culvert Mfg. Co., 126 Ga. App. 508, 191 S.E.2d 92 (1972); McDaniel v. Bliss, 156 Ga. App. 166, 274 S.E.2d 138 (1980); Atlanta Cas. Co. v. Jones, 247 Ga. 238, 275 S.E.2d 328 (1981); Chance v. Hanson, 160 Ga. App. 329, 287 S.E.2d 57 (1981).
RESEARCH REFERENCES
Am. Jur. 2d.
- 41 Am. Jur. 2d, Husband and Wife, § 194 et seq.
C.J.S.- 41 C.J.S., Husband and Wife, § 212 et seq.
ALR.
- Consent of husband to rendition of services by wife as prerequisite to her recovery therefor, 9 A.L.R. 1303.
Husband's right to damages for loss of consortium due to personal injury to wife, 21 A.L.R. 1517; 133 A.L.R. 1156.
Right of husband and wife to maintain joint action for wrongs directly affecting both arising from same act, 25 A.L.R. 743.
Judgment in action for damages on account of injury to wife as bar to action for injury to self sustained in same accident and vice versa, 55 A.L.R. 936.
Husband's right to damages for loss of consortium due to personal injury to wife, 133 A.L.R. 1156.
Spouse's cause of action for negligent personal injury as separate or community property, 35 A.L.R.2d 1199.
Right of wife to recover in individual capacity for medical expenses of husband injured by third person's negligence, 42 A.L.R.2d 843.
What law governs the right of a tortiously injured married woman to sue in her own name and the ownership of the cause of action, 97 A.L.R.2d 725.
Judgment in spouse's action for personal injuries as binding, as regards loss of consortium and similar resulting damage, upon other spouse not a party to the action, 12 A.L.R.3d 933.
Medical expenses due to injury to wife as recoverable by her or by husband, 21 A.L.R.3d 1113.
Spouse's or parent's right to recover punitive damages in connection with recovery of damages for medical expenses or loss of services or consortium arising from personal injury to other spouse or to child, 25 A.L.R.3d 1416.
Conflict of laws as to right of action for loss of consortium, 46 A.L.R.3d 880.
Validity of verdict or verdicts by same jury in personal injury action awarding damages to injured spouse but denying recovery to other spouse seeking collateral damages, or vice versa, 66 A.L.R.3d 472.
Measure and elements of damages in wife's action for loss of consortium, 74 A.L.R.3d 805.
Injured party's release of tortfeasor as barring spouse's action for loss of consortium, 29 A.L.R.4th 1200.