Coleman v. Clark

• Decision Date: 28 May 1980
• Docket Number: No. 58916,58916
• Parties: COLEMAN v. CLARK et al.
• Court: Georgia Court of Appeals

Page 824

267 S.E.2d 824

154 Ga.App. 188

COLEMAN v. CLARK et al.

No. 58916.

Court of Appeals of Georgia.

Argued Nov. 6, 1979.

Decided March 20, 1980.

Rehearing Denied March 31, 1980.

Certiorari Granted May 28, 1980.

Edward L. Savell, Atlanta, for appellant.

Roy E. Barnes, Marietta, Daryll Love, Anthony L. Cochran, Atlanta, for appellees.

CARLEY, Judge.

Mrs. Clark brought suit against Doris Coleman and Colt Industries Operating Corporation for injuries sustained when she was shot in the back after a .25 caliber pistol fell from Mrs. Coleman's pocketbook onto a restaurant floor and discharged. Mrs. Coleman filed a cross claim against Colt seeking indemnity from Colt for any award of damages found against her alleging that the pistol was defectively designed because it would fire when it was in an uncocked position and that the instructions furnished with the pistol failed to contain proper safety instructions. The main action and the cross claim were bifurcated at trial. The jury awarded Mrs. Clark $225,000 and her husband $5,000 against both Mrs. Coleman and Colt. After the jury verdict was entered, Colt and Mrs. Coleman each moved for a directed verdict on the cross claim filed by Mrs. Coleman. The court granted Colt's motion, denied Mrs. Coleman's motion and ordered that a verdict on the cross claim be entered against Mrs. Coleman.

1. In her first enumeration of error, Mrs. Coleman contends that the trial court erred in ruling that a cross claim was not the proper vehicle for asserting a claim for indemnity against a co-defendant. "A cross-claim seeking indemnity from an alleged tortfeasor is procedurally permissible." Coaxum v. Graham, 151 Ga.App. 75, 77, 258 S.E.2d 740, 741 (1979); U. S. Shoe Corp. v. Jones, 149 Ga.App. 595, 255 S.E.2d 73 (1979). A third-party complaint is served only "upon a person not a party to the action . . ." Code Ann. § 81A-114(a). Colt was a defendant in the main case and, therefore, the trial court erred in deciding that Mrs. Coleman had to proceed by third-party complaint in order to seek indemnity.

2. Although the trial court ruled that Mrs. Coleman's cross claim did not properly raise the questions of indemnity, he nevertheless proceeded to rule on the merits of the motions pertaining to the cross claim. Mrs. Coleman enumerates as error the denial of her motion for directed verdict and the grant of Colt's motion. The transcript reveals that the basis of the trial court's grant of Colt's motion for directed verdict was the trial court's belief that the jury, by its verdict against Mrs. Coleman, necessarily found Mrs. Coleman to be negligent and that such negligence precluded Mrs. Coleman from seeking indemnity. While it is true that the jury's verdict indicates that Mrs. Coleman was negligent vis-a-vis the plaintiff, that verdict did not and could not reveal whether such negligence of Mrs. Coleman was active or passive. It is clear that if the negligence of the tortfeasor is passive as opposed to active, a tortfeasor can seek indemnity against a party whose conduct is alleged to be the proximate cause of the injury. Peacock Const. Co. v. Montgomery Elevator Co., 121 Ga.App. 711, 713(2), 175 S.E.2d 116 (1970).

Colt contends that the evidence in this case demands a determination that Mrs. Coleman's negligence was "active" as a matter of...