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STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. JILES et al. (two cases).
42249.
42250.
Action on insurance policy. Cobb Superior Court. Before Judge Henderson.
FRANKUM, Judge.
1. The court erred in sustaining the general demurrers to the petitions for intervention.
2. "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." Georgia R. & Bkg. Co. v. Tice, 124 Ga. 459, 461 (52 SE 916, 4 AC 200). Therefore, under the foregoing rule of law, the court properly sustained the demurrers to the motions to consolidate these cases.
Neil L. Jiles sued William Richard Smith to recover damages which he alleged he sustained as the result of the negligence of Smith in operating his automobile so as to cause it to collide with the automobile of the plaintiff while he was operating it. Mrs. Fannie Sue Jiles, his wife, filed a separate suit against Smith to recover damages for her personal injuries which she alleged she sustained while riding as a passenger in the automobile driven by her husband and as the result of the same collision for which her husband sued. An amendment to each petition was allowed, and each amendment contained an allegation that State Farm Mutual Automobile Insurance Company is the insurer upon which service should be had under the provisions of Code Ann. 56-407.1 (d) (Ga. L. 1963, p. 588; 1964, p. 306). That Code section and the Acts from which it is taken relate to the requirement that policies of automobile insurance provide coverage with respect to loss caused by an uninsured motorist. Subsection (d) of that Code section provides in part: "That in cases where the owner of the vehicle causing the injury or damages is known, a copy of service shall be made upon the insurance company issuing the policy as prescribed by law as though such insurance company were a party defendant." In the amendment to his petition Mr. Jiles prayed that a second original of his petition issue and be served upon State Farm Mutual Automobile Insurance Company. The amendment to the petition of Mrs. Jiles contains a similar prayer. Service of a copy of each petition as amended was perfected upon State Farm Mutual Automobile Insurance Company. Thereafter the insurance company presented to the court in each case a petition to be allowed to intervene. The court ordered each petition for intervention to be filed and issued a rule nisi on each requiring the plaintiff and the defendant to show cause why the petition for intervention should not be granted. Neil L. Jiles filed a general demurrer to the petition for intervention in his case, and Fannie Sue Jiles demurred generally to the petition for intervention in her case.
State Farm Mutual Automobile Insurance Company also filed in each case a motion seeking an order consolidating the two cases. Plaintiffs respectively generally demurred to those motions. Upon a hearing the trial court sustained the general demurrers to the petitions to intervene and the general demurrers to the motions to consolidate the two cases. The insurance company appealed from the judgments on the plaintiff's demurrers in each case. Since the questions presented by the enumerations of error in each case are identical, the appeals have, for the purpose of this opinion only, been considered and treated together in this court.
Appellees contend in their briefs that there are no allegations in their respective petitions that the defendant Smith was in fact an uninsured motorist. While it was not expressly so alleged in either petition, the amendment in each case praying that State Farm Mutual Automobile Insurance Company be served under the provisions of Code Ann. 56-407.1, can have no other meaning than that the defendant named in the suit was an uninsured motorist.
2. One not a party cannot make a motion to consolidate two or more cases. However, if the insurance company had been a party to each of these cases at the time the motions to consolidate were made, the demurrers thereto were properly sustained. These cases are not the kind of cases which can be consolidated. In the suit of Neil L. Jiles he is seeking to recover for medical expenses incurred by him on behalf of his wife, for loss of her services, for property damage to his automobile, and for loss of the use of his automobile. In his wife's suit she seeks to recover damages on account of bodily injuries. "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. Therefore they can not be properly joined in one suit." Georgia R. & Bkg. Co. v. Tice, 124 Ga. 459, 461, supra. Generally, the determining factor as to whether two suits can be consolidated depends on whether they could have been originally brought in one action, "and this depends on whether a misjoinder or multifariousness would result." Sanders v. Wilson, 193 Ga. 393 (18 SE2d 765). The question regarding consolidation of cases is usually one in the discretion of the trial judge, "but the authority of the trial judge to consolidate cases exists only when the right to a consolidation exists. The courts have no power to consolidate where the rules of law give no right of consolidation." Worley v. Gaston, 210 Ga. 350, 351 (80 SE2d 304). Whether or not the motions to consolidate these cases were made at a time when the movant was in a position to make such motions, the court reached the right result and did not err in sustaining the demurrers thereto and in dismissing the motions for consolidation.
Judgment affirmed in part; reversed in part. Felton, C. J., and Pannell, J., concur.
George & George, William V. George, Frank D. Schaffer, for appellees.
Powell, Goldstein, Frazer & Murphy, Eugene G. Partain, John A. Helms, C. B. Rogers, for appellant.
ARGUED SEPTEMBER 8, 1966 -- DECIDED JANUARY 27, 1967 -- REHEARING DENIED FEBRUARY 13, 1967 -- CERT. APPLIED FOR.
Friday May 22 19:40 EDT


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