6 Ga. App. 616 | Ga. Ct. App. | 1909
The Raleigh & Gaston Railroad Company et al. brought suit against the Western & Atlantic Railroad Company to recover the amount of a judgment obtained against the Raleigh & Gaston Railroad Company et al. by the Pullman Company. • The trial judge sustained a general demurrer to the petition and dismissed the suit, and the plaintiffs excepted. The suit was brought under section 5234 of the Civil Code of 1895, which is as follows: “Where a defendant may have a remedy over against another, and vouches him into court, by giving notice of the pendency of the
The suit of the Pullman Company against the Ealeigh & Gas-ton was upon a breach of contract growing out of a failure to repair the car “Emison,” and interest was claimed and recovered for failure to repair within a reasonable time. The right of action of the Ealeigh & Gaston against the Western & Atlantic, according to the allegations of the petition, depends upon the former’s right to recover for the tort — the damages arising from the negligent action of the Western & Atlantic in running its train into the ear and damaging it. The defenses which could be set up to defeat the right in the suit between the Pullman Company and the Ealeigh & Gaston were wholly different from the defenses which could be set up to defeat the right asserted in the suit between the Ealeigh & Gaston and the Western & Atlantic. While it is perhaps not necessary that actual privity should be shown to exist between the
The case of McArthor v. Ogletree, 4 Ga. App. 429 (61 S. E. 859), is a case (as pointed out by counsel for the defendant in error) in which there was no contractual liability in the first suit, while there was a contractual liability on the part of the voucheeto the voucher to indemnify the voucher for damages recovered in the first suit. That was a case in which one person had by contract agreed to indemnify another person in the event that a judgment was obtained for a tort; and both of the liabilities included the same subject-matter. For this reason the McArthor case is not in point in support of the proposition .asserted by the plaintiff in error, though it does furnish an instance of where contractual liability may overlap and include liability arising by operation of law. If in the present case the Ealeigh & Gaston had contracted to pay all damages arising from negligence only, then it might be that.
Counsel for the plaintiff in error clearly state the principle embodied in section 5234 as follows: “This section of the code [§5234] gives a defendant who is sued on a cause of action for which some one else is justly responsible a right to. vouch this some one else into the case and call upon the party primarily responsible for the complaint of the moving party to come in and defend the case; and when such party has been thus vouched in, he is bound by the judgment rendered as to the amount and right of the plaintiff to recover.” We think, however, that the learned counsel misapprehend the ease at bar, in concluding that the Western & Atlantic was justly responsible for the breach of contract of the Ealeigh & Gaston. Under the contract the repairs were to be completed within a reasonable time. The breach of contract was the failure to have the repairs made within a reasonable time. Granting that the Western & Atlantic was responsible for the original injury to the car “Emison,” and that this negligence created the necessity or raised the duty on the part of the Ealeigh & Gaston to have the repairs made on the car, still there is nothing to show that the Western & Atlantic is justly responsible for the failure of the Ealeigh & Gaston to comply with its duty to have the repairs completed within a reasonable time. The mere fact that the Ealeigh & Gaston, if liable to the Pullman Company for breach of contract, might have an independent cause of action against the Western & Atlantic, in which it could recover practically what it had been compelled to pay to the Pullman Company, would not give the Ealeigh & Gaston a right to