Central of Georgia Ry. Co. v. Macon Ry. & Light Co.
| Docket Number | 2,991. |
| Decision Date | 07 June 1911 |
| Citation | 71 S.E. 1076,9 Ga.App. 628 |
| Parties | CENTRAL OF GEORGIA RY. CO. v. MA CON RY. & LIGHT CO. |
| Court | Georgia Court of Appeals |
Rehearing Denied Sept. 11, 1911.
Syllabus by the Court.
Where one of the parties to a pending action claims that a third person is liable over to him in the event he loses in the suit, and vouches that person by notifying him of the pendency of the suit and giving him opportunity to appear therein, the judgment in that suit is conclusive on the person vouched as to the correctness of the judgment, but is not conclusive of the fact that there is such a relationship between the person vouched and the person vouching as that a right of action over exists.
A right of action over against some third person for contribution or indemnity in favor of the party cast in a prior suit may arise from relationships either contractual or noncontractual.
Generally speaking, one of two or more joint wrongdoers has no right of action over against those connected with him in the tort for either contribution or indemnity where he alone has been compelled to satisfy the damages resulting from the tort. In some cases two or more persons may be liable as joint wrongdoers, so far as concerns a person injured by a tort and yet as among themselves the tort may not be joint; and in some cases of this kind a right of action over may exist in favor of the one who has been compelled to pay the damages as against another who as between them was the sole author of the wrong.
(a) Ordinarily, if one person is compelled to pay damages because of negligence imputed to him as the result of a tort committed by another, he may maintain an action over for indemnity against the person whose wrong has thus been imputed to him; but this is subject to the proviso that no personal negligence of his own has joined in causing the injury.
The negligence of two persons may be truly concurrent, even as among themselves, though the negligence of the one began antecedently to the negligence of the other, and may, in a greater or less degree, have induced it; and in such cases no right of contribution or indemnity exists between the wrongdoers. Where two separate persons owe to a third person the same concurrent duty as to a particular thing, and by reason of the negligent failure of each and both of them to perform that duty, the third person is injured and he sues only one of those who owed him the duty (basing his right of action solely upon the tortious state of affairs brought about by this joint and common neglect of duty), and recovers damages, no action over arises in favor of the person thus subjected to the sole liability against the other person who owed the same duty.
Where a right of action over against a third person is asserted by the defendant in a prior tort action who has been compelled by the judgment thereon to pay damages, the plaintiff in the second action is estopped from showing that the causes alleged in the prior action were not the true causes of the damage. The only theory on which the second suit in such a case can proceed is that the judgment in the first case was based on a correct finding of the facts, and that that state of facts, taken in connection with the relationship of the parties to the second suit as to that state of facts, is such as to give an action over in favor of the one as against the other.
Error from City Court of Macon; Robt. Hodges, Judge.
Action by the Central of Georgia Railway Company against the Macon Railway & Light Company. Judgment for defendant, and plaintiff brings error. Affirmed.
R. C Jordan, for plaintiff in error.
Guerry Hall & Roberts, for defendant in error.
POWELL J. (after stating the facts as above).
Codifying a common-law doctrine, Civ. Code 1910, § 5821, declares "Where a defendant may have a remedy over against another, and vouches him into court by giving him notice of the pendency of the suit, the judgment rendered therein will be conclusive upon the party vouched, as to the amount and right of the plaintiff to recover." The steps necessary to vouch the present defendant were regularly taken, and the judgment against the present plaintiff was duly rendered against it as defendant in the former suit, so in the present case the sole question is, "Does the present plaintiff have a remedy over against the present defendant?" The former judgment does not answer this question.
2. The right of one who has had a judgment rendered against him to maintain an action over against a third person may arise from relations contractual or noncontractual existing between the two. The duty to indemnify may arise from some express or implied agreement to indemnify, or may arise by operation of law, independently of contract. The natural, legal, and proximate result of a tort committed by A. may be to subject B. to legal liability and to a necessity to respond in damages to some third person, say C., and in some such cases B., when subjected to liability by C., may recover from A. the amount of the damage which has thus been caused to him. Familiar examples of contractual right of action over are to be found in cases where the loser in the first action holds the warranty of a third person or holds his agreement to indemnify.
The present case proceeds ex delicto. The petition alleges no warranty or contract for indemnity, but bases the right of the railroad company to recover over against the light company exclusively upon acts of negligence --negligent installation of the wires, negligent failure to insulate them properly, negligent failure to make adequate inspections, the negligent allowing of the electric circuit to become grounded. Hence we must determine whether through one or more of these alleged torts there arose in favor of the railway company a right of action over against the light company on the theory that the loss, which the railway incurred through its employé's widow establishing liability against it on account of her husband's death, can be considered as damages naturally, legally, and proximately flowing to the railway company from the light company's wrongful acts. To state it somewhat differently, was the railway company in the first suit subjected to liability, not for its own immediate wrong, but solely because of the wrong of the light company?
3. In approaching the consideration of the questions just proposed it is well to notice at the out-set a doctrine too well settled to admit of doubt or to require the citation of authority. It is the general rule that, where a person has been damaged by the concurrent negligence of two or more joint wrongdoers, he may sue either one or more, or all of them, and that, if he sues only one or only a part of them, those so subjected to liability can claim no contribution from those not sued; and in such cases it is unquestionable that no right of action over ordinarily exists. But there may be cases in which a person who has suffered loss or damage may have the right to sue two persons as if they were joint wrongdoers, without their being, as among themselves, joint wrongdoers. A.'s servant, B., negligently injures C. in the performance of A.'s work. From C.'s standpoint, A. and B. are joint wrongdoers, but as among...
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