Lower riparian landowners brought an action in DeKalb Superior Court in tort seeking damages against ten defendants who were upper ripariаn landowners, developers and contractors. Among the defendants named were: Marchman & Sons, Inc. (Marchman), John H. Cowart, Inc. (Cowart), David Nelson (Nelson), and Steve Arthur (Arthur). A settlement was reached between the plaintiffs and all the defendants except three who declined to participate. Plaintiffs gave a release to the participating defendants and dismissed the complaint with prejudice. Marchman and Cowart, who participated in the settlement, then brought suit for contribution against Nelson and Arthur, 1 who did not participate in the settlement. The trial court granted summary judgment to the defendants, Nelson and Arthur. The Court of Appeals affirmed on the ground that the dismissal with prejudice of the underlying tort suit is a bar to the suit fоr contribution. Certiorari was granted as to this issue. We reverse.
The issue before us requires a consideration of our basic statute regarding the right of contribution among joint tortfeasors. OCGA § 51-12-32 (Code Ann. § 105-2012).
2
Some history is necessary in order to understand the statute. An oversimplified account of the history of contribution among joint tortfeasors begins with the premise that at common law contribution was not allowed. Greyhound Lines v. Cobb County, Georgia, 681 F2d 1327 (11th Cir. 1982); W. Prosser,
Law of Torts,
§ 50 (4th Ed.) (1971); Note,
Contribution Among Joint Tortfeasors,
12 Ga. Law Rev. 553 (1978). The early cases dealt with
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intentional wrongdoers. The law would not undertake to aid one who had intentionally done wrong. Under this rule, assume A was damaged by the intentional wrongful joint acts of B and C. A obtained judgment against them both, but satisfied the judgment against B only. There was no common law right of action in B to recover, as contribution from C, a pro rata portion of the amount paid to satisfy A’s judgment. The law would not aid B, an intentional wrongdoer. This rule turned out to be too hаrsh in the case of tortfeasors who were only negligent and not intentional wrongdoers. Our courts developed a rule recognizing a right of cоntribution in one joint tortfeasor who was merely passive in his conduct from another joint tortfeasor who was active in his conduct. See:
Central of Ga. R. Co. v. Macon Railway &c. Co.,
The factual situation before us in this case adds one dimension to the last hypothetical case discussed. A suit was filed. There was a settlement reached between the plaintiffs and Marchman and Cоwart. A release was given by the plaintiffs to Marchman and Cowart. Furthermore, as the added dimension, the complaint against all the defendants in the tort suit was dismissed with prejudice by the plaintiffs. Nelson and Arthur argue that a dismissal with prejudice is an adjudication that they are not joint tortfeasors. In other words, the dismissal with prejudice is an adjudication on the merits in their favor. The Court of Appeals accepted this argument and concluded thаt there could be no contribution because there could be no adjudication that there were joint tortfeasors. This overlooks the substаnce of the transaction. A dismissal with prejudice
operates
as an adjudication on the merits. It is a final disposition. It bars the right to bring another action on the sаme claim or cause.
Cranford v. Carver,
Judgment reversed and remanded for further consideration not inconsistent herewith.
Notes
DeKalb County was also named a defendant in the contribution suit but is not a party to this appeal.
“(a) Where a tortious act does not involve moral turpitude, contribution among several trespassers may be еnforced just as if an action had been brought against them jointly. Without the necessity of being charged by action or judgment, the right of a joint trespassеr to contribution from another or others shall continue unabated and shall not be lost or prejudiced by compromise and settlement of а claim or claims for injury to person or property or for wrongful death and release therefrom.
“ (b) If judgment is entered jointly against several trespassers and is paid off by one of them, the others shall be liable to him for contribution.”
The general rule in Georgia is that a release in favor of one joint tortfeasor, in full settlement of deimages, releases all joint tortfeasors.
Zimmerman’s, Inc. v. McDonough Constr. Co.,
This does not mean the plaintiff in the contribution suit is reliеved of the necessity to prove the defendant was a joint tortfeasor. For a discussion of the necessary proof in the contribution suit, absent a judgment, see: Note, Contribution Among Joint Tortfeasors, 12 Ga. Law Rev. 553, 557 (1978).