47 Ga. App. 489 | Ga. Ct. App. | 1933
The Southern Railway Company filed its petition in the superior court of Floyd county against the city of Rome, averring that Mrs. Mollie Autry had procured a joint verdict and a joint judgment for $7000 in an action brought by her in said court to recover damages from plaintiff and defendant for her son’s death, resulting from the running of an automobile in which he was riding, into a concealed hole located on a street of said city and the right of way of said railway company; that the execution based upon said verdict and judgment was levied on certain property of the railway company; that in order to protect its propertj’, plaintiff paid off said judgment in full; and that the railway company was “legally and equitably entitled to contribution from said city of Rome to the extent of one half of the amount so paid by it,” with interest thereon from November 13, 1928. Attached to the petition as an exhibit was a copy of the following writing, dated November 13, 1928, signed by Mrs. Autry and her attorneys, and entered upon the fi. fa.: “ Received of Southern Railway Company the sum of $8680.20 in full payment of the principal, interest to this date, and cost due on the within execution, and in consideration thereof said execution, with all of my right, title and interest therein, is hereby transferred and assigned to said Southern Railway Company, one of the codefendants named in said execution.”
It appears from the copy of the petition in Mrs. Autry’s damage suit, attached to the petition in the instant case as an exhibit, that the hole into which the automobile in which young Autry was rid
The city of Eome demurred to the petition, (1) Because it "sets forth no cause of action. . . ” (3) Because, "under the allegations of said petition, plaintiff was a joint tort-feasor with defendant, and, under the law, plaintiff would not be entitled to a recovery of any sum from defendant.” (3) Because "plaintiff’s petition discloses that the cause out of which plaintiff’s alleged right to contribution arose has already gone to judgment against plaintiff and defendant, and should plaintiff be entitled to contribution from defendant for the amount sued for, or for any other sum, there could be no necessity for the present suit for the enforcement of plaintiff’s rights against defendant, said cause being in judgment, and plaintiff having a remedy on said judgment rinder the law.”
A complete history of the facts leading up to the bringing of the instant suit is given in Autry v. So. Ry. Co., 167 Ga. 136 (144 S. E. 741). The real purpose of the equitable proceeding in that case, brought by the Southern Eailway Company against Mrs. Autry, was to procure contribution from the city of Eome in half of the amount of the judgment it had paid off in Mrs. Autry’s damage suit. The Supreme Court held that it did not lie in the mouth of the Southern Eailway Company to claim contribution when it.
In the first place, we are not impressed with the soundness of the contention of counsel for defendant in error that the original tort action became á contract of record under the Civil Code (1910), § 4218, and was so merged into the judgment rendered therein that, in determining the right of contribution in the instant case, the judgment, or “ contract of record,” alone must be considered, and the fact that the plaintiff and defendant were joint tort-feasors must be forgotten. We do not think that any of the following cases, cited by counsel for defendant in error, supports this contention: Howell v. Shands, 35 Ga. 66, 72; Williams v. Merritt, 109 Ga. 213, 216 (34 S. E. 312); Underwood v. Underwood, 139 Ga. 241 (77 S. E. 46, L. R. A. 1918A, 1). Granting that a “contract of record” “ operates as an estoppel, and is conclusive between the parties,” and that it “effects, or works, a merger of the original cause of action,” and that “the doctrine of merger holds not only where the original action was founded upon contract, but where it was founded upon a tort for wrong, independent of contract” (Howell v. Shands,
At common law, one joint tort-feasor is not entitled to contribution from another who has paid off the full amount of the joint judgment against them. Dent v. King, 1 Ga. 200, 203 (44 Am. D. 638); Haupt v. Mills, 4 Ga. 543, 557; W. & A. R. v. Atlanta, 74 Ga. 774 (6); Chattahoochee Brick Co. v. Braswell, 92 Ga. 631 (18 S. E. 1015). This rule of the common law is still of force in Georgia, except in so far as it has been modified by §§ 4513 and 4513 of the Civil Code of 1910. Mashburn v. Dannenberg Co., 117 Ga. 567, 582 (44 S. E. 97). Chattahoochee Brick Co. v. Braswell, supra. Section 4513 of the Civil Code reads: “Where several trespassers are sued jointly, the plaintiff may recover, against all, damages for the greatest injury done by either. But the jury may, in their verdict, specify the particular damages to be recovered of each, and judgment in such case must be entered severally.” Section 4513 is as follows: “If judgment is entered jointly against several trespassers, and is paid off by one, the others shall be liable to him for contribution.” Counsel for defendant in error contend that the word “trespassers,” as used in the foregoing code sections is equivalent to the word “tort-feasors,” and, therefore, that the
It has been stated many times that §§ 4512 and 4513 are applicable- to trespasses on property, and not to personal torts. See Hunter v. Wakefield, 97 Ga. 543, 545 (25 S. E. 347, 54 Am. St. R. 438); McCalla v. Shaw, 72 Ga. 458, 460; Cox v. Strickland, Mashburn v. Dannenberg Co., supra. It appears from the petition in the case át bar, and the exhibit of the original damage suit attached thereto, that the petition charges that the acts of negligence causing the death of Mrs. Autry’s son were jointly and concurrently participated in by both the Southern Eailway Company and the city of Eome — that is to say, that the defendants were really joint tortfeasors ; and, this being true, the premises considered, we hold that the petition of the Southern Eailway Company fails to set out a case for contribution against the city of Eome. Whether or not the Southern Eailway Company could have enforced its claim for contribution under section 5971 of the Civil Code, as suggested in Autry v. So. Ry. Co., supra, it is not necessary to discuss, since no such method was followed.
Judgment reversed.