City of Rome v. Southern Ry. Co.
| Docket Number | 22725. |
| Decision Date | 06 September 1933 |
| Citation | 170 S.E. 695,47 Ga.App. 489 |
| Parties | CITY OF ROME v. SOUTHERN RY. CO. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Street railroad paying entire joint judgment entered against itself and city for their joint negligence held not entitled to contribution from city (Civ. Code 1910, §§ 4218, 4512, 4513; Const. art 6, § 16, par. 4).
It appearing from the petition for contribution in the instant case that a joint verdict and a joint judgment had been procured against petitioner and another joint tort-feasor (the defendant in the instant case) in an action for damages brought against said parties for a homicide brought about by the joint and concurrent acts of negligence of petitioner and defendant, that a joint execution based upon said verdict and judgment was levied on petitioner's property, that, in order to prevent said property from being sold under said execution, petitioner paid it off in full, and that petitioner asks for a judgment against defendant for one-half of the money expended by it in paying off said execution, the petition was subject to the demurrer attacking it upon the ground that "plaintiff was a joint tort-feasor, and under the law, would not be entitled to a recovery of any sum from the defendant;" and the court committed reversible error in overruling the demurrer.
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.
Reversed.
Leon Covington and Wright & Covington, all of Rome, for plaintiff in error.
Maddox Matthews & Owens of Rome, for defendant in error.
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 $7,000 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 property, 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 $8,680.20 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 riding ran was located "in Gibson street, and on the right of way of the Southern Railway Company," in Rome, Ga., and that said hole was concealed from view by vines and other growth. Paragraph 32 of Mrs. Autry's petition avers that "the allowing of said described hole in said street *** constituted a nuisance on the part of the City of Rome and the Southern Railway Company, and the permitting and allowing of said hole to remain in said street of the City of Home, and on the right of way of the Southern Railway Company *** was gross negligence on the part of the City of Rome, and of the Southern Railway Company; and the failure to protect the public from falling into said hole by not erecting guards or rails around said hole was negligence on the part of the City of Rome and the Southern Railway Company; and the son of your petitioner having fallen into said hole, and having been killed under the circumstances aforesaid described, renders the City of Rome and the Southern Railway Company liable to your petitioner in damages. ***" The prayer of Mrs. Autry's petition is that she have judgment against the said city of Rome and the Southern Railway Company in the sum aforesaid.
The city of Rome demurred to the petition (1) because it "sets forth no cause of action ***"; (2) 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 under 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, 744. The real purpose of the equitable proceeding in that case, brought by the Southern Railway Company against Mrs. Autry, was to procure contribution from the city of Rome 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 Railway Company to claim contribution when it had paid nothing on the alleged joint obligation. In this connection the court said: In the fifth division of the opinion the court said: It thus appears that the Supreme Court carefully avoided deciding whether or not an action for contribution would lie if the railway company had paid off the amount due on the joint judgment and execution.
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 a contract of record under 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...
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