City Of Rome v. Southern Ry. Co

• Decision Date: 24 November 1934
• Docket Number: No. 22725.,22725.
• Citation: City Of Rome v. Southern Ry. Co, 177 S.E. 520, 50 Ga.App. 185 (Ga. App. 1934)
• Parties: CITY OF ROME. v. SOUTHERN RY. CO.
• Court: Georgia Court of Appeals

50 Ga.App. 185

177 S.E. 520

CITY OF ROME.

v.SOUTHERN RY. CO.

No. 22725.

Court of Appeals of Georgia, Division No. 1.

Nov. 24, 1934.

Syllabus by the Court.

1. The decision of this court in the case of City of Rome v. So. Ry. Co., 47 Ga. App. 489, 170 S. E. 695, having been reversed by the Supreme Court in Southern Ry. Co. v. City of Rome, 179 Ga. 449, 176 S. E. 7, is vacated, and it is now held that the judge of the superior court did not err in overruling the demurrer that "plaintiff was a joint tortfeasor with defendant, and, under the law, would not be entitled to a recovery for any sum from the defendant."

2. The remedy under the Civil Code 1910, § 5971, for enforcing contribution is cumulative and does not abrogate existing remedies, and the trial judge did not err in overruling the demurrer averring, in substance, that the Southern Railway was not entitled to contribution in the present action because it had a complete statutory remedy under said code section.

3. The petition sets out a cause of action.

Error from Superior Court, Floyd County; James Maddox, Judge.

Suit by the Southern Railway Company against the City of Rome. To review a judgment overruling its demurrer to the petition, defendant brings error.

Affirmed.

Conforming to opinion of the Supreme Court in 179 Ga. 449, 176 S. E. 7, and vacating decision of the Court of Appeals in 47 Ga. App. 489, 170 S. E. 695.

Leon Covington, Wright & Covington, and W. B. Mebane, all of Rome, for plaintiff in error.

Maddox, Matthews & Owens, of Rome, for defendant in error.

MacINTYRE, Judge.

The Supreme Court, in the case of Southern Ry. Co. v. City of Rome, 179 Ga. 449, 176 S. E. 7, having held on certiorari that "under the provisions of sections 4588 and 5971 of the Civil Code 1910, the right of contribution extends equally to actions ex contractu and actions ex delicto, 'where all are equally bound to bear the common burden, and one has paid more than his share, '" and that "the Court of Appeals erred in reversing the judgment of the superior court overruling the demurrer based upon the ground that the plaintiff, being a joint tortfeasor, was not entitled to contribution to reimburse it for the payment of the equal liability of the defendant who was 'equally bound to bear the common burden, '" the former decision of this court, in 47 Ga. App. 489, 170 S. E. 695, is hereby vacated, and it is now held that the judge of the superior court did not err in overruling the demurrer that "plaintiff was a joint tort-feasor [with defendant], and, under the law, would not be entitled to a recovery of any sum from the defendant."

The Southern Railway Company brought an action against the city of Rome to recover one-half of a sum it had been compelled to pay on a joint execution based upon a joint judgment procured by Mrs. Mollie Autry in an action for damages brought by her against said railway company and said city jointly for the homicide of Mrs. Autry's son. The Supreme Court having reversed the decision of this court in 47 Ga. App.489, 170 S. E. 695, as shown in the first division of this opinion, we shall now pass upon the following demurrer of the city of Rome to the petition in this action for contribution: "Plaintiff's petition discloses that the cause out of which plaintiff's alleged right to contribution arose has already gone to judgment against plain tiff and defendant, and should plaintiff be entitled to contribution from the defendant for the amount sued for or 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 under the law." In support of this contention, counsel cite the statement of the Supreme Court in Autry v. Southern Ry. Co., 167 Ga. 136, 142, 144 S. EL 741, 744, that if the Southern Railway Company "is entitled to contribution from the city of Rome, it has an ample remedy at law" under the Civil Code 1910, § 5971. In the case cited, the Supreme Court held that the trial court erred in not sustaining Mrs. Autry's demurrer to an equitable petition brought by the Southern Railway Company against her and others, and designed to compel contribution from the city of Rome. This case was decided primarily upon the theory that it did not lie in the mouth of the Southern Railway Company to claim contribution when...