Dodge Trucks, Inc. v. Wilson

• Decision Date: 12 November 1976
• Docket Number: No. 52635,No. 2,52635,2
• Citation: 140 Ga.App. 743,231 S.E.2d 818
• Court: Georgia Court of Appeals
• Parties: , 21 UCC Rep.Serv. 147 DODGE TRUCKS, INC., et al. v. Johnny WILSON, etc

Page 818

231 S.E.2d 818

140 Ga.App. 743, 21 UCC Rep.Serv. 147

DODGE TRUCKS, INC., et al. v. Johnny WILSON, etc.

No. 52635.

Court of Appeals of Georgia, Division No. 2.

Nov. 12, 1976.

Rehearing Denied Dec. 14, 1976.

Neely, Freeman & Hawkins, Andrew M. Scherffius, Atlanta, for appellants.

Hurt, Richardson, Garner & Todd, J. Robert Persons, Atlanta, for appellee.

SMITH, Judge.

Johnny Wilson, for the use of Canal Insurance Company, brought a complaint against Dodge Trucks, Inc., and Chrysler Corporation, dealer and manufacturer respectively, seeking recovery in three counts for the amount of a settlement paid by Canal Insurance Company in separate actions brought against Wilson and his employee by several parties, as the result of a collision which occurred June 16, 1971, between a Dodge truck driven by Wilson's employee and an automobile occupied by these several parties and driven by one of them. The truck driven by the employee on that occasion had been purchased from Dodge Trucks, Inc., and manufactured by Chrysler Corporation. The complaint alleged that a settlement was effected of the above suits against Wilson and Canal paid the amount of the settlement in the aggregate amount of $26,000. It was also alleged the truck was sold pursuant to warranties by Dodge Trucks, Inc., and Chrysler Corporation; that the truck was merchantable and fit for the particular purpose of heavy duty hauling. Defects were alleged as to the brakes and lateral alignment and suspension of the forward drop axle, as constituting a breach of the warranties which were alleged to be the direct and proximate cause of the above collision. The complaint, in addition to alleging the above facts, the details of the collision, and the breach of the warranty, also alleged that Dodge Trucks, Inc., was advised of the pendency of the aforesaid lawsuits and invited to participate in and assume the defense of these cases, as well as being advised of its potential exposure and liability to the plaintiff herein for any damages sustained in connection with the aforesaid lawsuits by the plaintiff in the present action; and that Dodge Trucks, Inc. denied liability and refused to participate in the defense or settlement of these lawsuits; and that Canal Insurance Company paid the $26,000 on behalf of its insured, Johnny Wilson. All of these allegations were incorporated in the respective counts of the complaint. Count 1 further alleged that the payments made by Canal Insurance Company were reasonable made to terminate the exposure of the insured, Johnny Wilson, which exposure was occasioned and proximately resulted from the injuries suffered by the claimants, in the prior suits, as the result of the breach of various warranties by Dodge Trucks, Inc., et al. and that incidental and consequential damages for breach of warranties was included in the amount of $26,000 paid in settlement of the above claims, and prayed for judgment in that amount together with reasonable attorney fees. Counts 2 and 3 were based upon negligence, count 2 being against Dodge Trucks, Inc., and count 3 being against Chrysler Corporation. The defendants moved for summary judgment on all counts. The trial judge granted summary judgments as to counts 2 and 3, based upon negligence, and overruled the motion for summary judgment as to count 1 of the complaint. Upon application to this court, the appeal as to the denial of summary judgment as to count 1 was granted.

1. As stated by the appellant, the sole question here is whether this action for contribution and indemnity (even though Count 1 is couched as an action for breach of warranty seeking recovery of sums paid in settlement of actions against the appellee Wilson as the result of such breach) is maintainable in the absence of a judgment against Wilson.

Code § 105-2012, prior to the Act of 1966 (Ga.L.1966, p. 433, 434) read: 'If a judgment is entered jointly against several trespassers and is paid off by one, the others shall be liable to him for contribution.' The Act of 1966, numbered the original section as subsection '(2)' and added a subsection '(1)' reading as follows: 'Where the tortious act does not involve moral turpitude, contribution among several trespassers may be enforced just as if they had been jointly sued.' It was the common law rule that there was no right of contribution between joint tort feasors, and one joint tort feasor was not entitled to contribution from another who had paid off a joint judgment against them; and this rule still exists except as modified by Code §§ 105-2011 and 105-2012. See Chattahoochee Brick Co. v. Braswell, 92 Ga. 631, 633, 18 S.E. 1015; City of Rome v. Southern R. Co., 47 Ga.App. 489, 493, 170 S.E. 695. The Act of 1966, amending Code § 105-2012 was held not to change the rule that a judgment must first be obtained. See Hangar Cab Co., Inc. v. City of Atlanta, 122 Ga.App. 661, 178 S.E.2d 292. It follows therefore that prior to the Act of 1972 (Ga.L.1972, p. 132, which added to subsection (1) the following sentence: 'Without the necessity of being charged by suit or judgment, the right of contribution from another or others shall continue unabated and shall not...