Garrett v. Garrett, s. 47933

Decision Date05 March 1973
Docket Number47950,Nos. 47933,No. 2,s. 47933,2
Citation128 Ga.App. 594,197 S.E.2d 739
PartiesRobert S. GARRETT v. Henry W. GARRETT (two cases)
CourtGeorgia Court of Appeals

J. M. Grubbs, Jr., Adele Platt, Marietta, for appellant.

McDonald, Dupree, Rodriguez & Moore, Hylton B. Dupree, Jr., James D. Stokes, Marietta, for appellee.

Syllabus Opinion by the Court

EVANS, Judge.

Henry Wayne Garrett sued Robert S. Garreet and W. S. Pruett Construction Company for property damage and personal injury arising out of collision between two automobiles driven respectively by plaintiff Garrett and defendant Garrett, who were not related to each other. The collision occurred in the vicinity of an intersection of two roads in Cobb County where defendant Pruett was engaged in a construction operation. The petition alleged that plaintiff Garrett was struck in the rear by the defendant Garrett when plaintiff was forced to slow down or stop because of the blockage of the main traveled portion of the road by defendant Pruett's construction equipment.

After defendants filed their answers, and after discovery, a pre-trial order was filed. The case came on for trial, and the plaintiff filed a voluntary dismissal with prejudice as to the defendant, W. S. Pruett, who was then ordered dismissed by the court.

During the course of the trial, defendant made a motion to dismiss plaintiff's case, contending that the dismissal of the co-defendant with prejudice operated as a bar to any further claim by plaintiff against any one. Defendant also moved for a directed verdict upon the same ground. Both motions were overruled. A verdict for $100 was returned in favor of plaintiff, upon which, judgment was regularly entered.

Plaintiff filed a motion for new trial, and defendant filed a motion for judgment notwithstanding the verdict in accordance with his previous motion for directed verdict, which was later amended. Defendant's motion for judgment notwithstanding the verdict was denied, and the plaintiff's motion for new trial was granted. Defendant Garrett has filed two separate appeals to these judgments here. Held:

1. Defendant contends that plaintiff's voluntary dismissal with prejudice of his co-defendant, constitutes a bar to any further claim by plaintiff against any person. Defendant contends that such dismissal was an adjudication on the merits of the case, and extinguished plaintiff's entire claim; and that under such status of the case, a verdict in favor of the remaining defendant was demanded.

Under the recent case of North Carolina National Bank v. Peoples Bank of LaGrange, 127 Ga.App. 372(1), 193 S.E.2d 571, this court stated the general rule that a plaintiff is not required to join all tortfeasors to recover for damages sustained, nor may the plaintiff be compelled to bring in other tortfeasors; nor is he required to join all tortfeasors in one suit to recover the damages sustained. Also see Wall v. Wall, 176 Ga. 757(1), 168 S.E. 893. This rule applies here where plaintiff elected to dismiss one of the alleged tortfeasors and to proceed against the other. It is clear from the pleadings that the alleged negligence of the two defendants was not the same.

2. But defendant contends further that the voluntary dismissal with prejudice by the plaintiff of the other tortfeasor resulted in accord and satisfaction by reason of the release of a codefendant which would release the other. An examination of the entire record and transcript fails to disclose any agreement, contract or matter which could result in an accord and satisfaction. The evidence fails to show any facts...

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8 cases
  • Blanchard v. Westview Cemetery, Inc.
    • United States
    • Georgia Court of Appeals
    • October 8, 1974
    ...to the enactment of both the Civil Practice and Appellate Practice Acts, and Lawson was cited with approval in Garrett v. Garrett, 128 Ga.App. 594, 596(3), 197 S.E.2d 739. Accordingly, although the finding of the defendant's liability in some amount was authorized, if not demanded, by the e......
  • Hodges-Ward Associates, Inc. v. Ecclestone, HODGES-WARD
    • United States
    • Georgia Court of Appeals
    • November 18, 1980
    ...that he would not be joined in the lawsuit is insufficient to constitute a release as to the other defendants. Garrett v. Garrett, 128 Ga.App. 594, 197 S.E.2d 739 (1973). Hence, summary judgment on the conspiracy claim with regard to all parties was not 3. Appellant's complaint also states ......
  • Guest v. Mitchell
    • United States
    • Georgia Court of Appeals
    • December 16, 1980
    ...the allegations of the complaint are controlling. See Zimmerman's, Inc. v. McDonough Const. Co., supra; Garrett v. Garrett, 128 Ga.App. 594, 197 S.E.2d 739 (1973); Edmondson v. Hancock, 40 Ga.App. 587, 151 S.E.2d 114 (1929); Griffin Hosiery Mills v. United Hosiery Mills, 31 Ga.App. 450, 120......
  • Gilmore v. Fulton-DeKalb Hospital Authority
    • United States
    • Georgia Court of Appeals
    • September 25, 1974
    ...inconsistent remedies until the debt or the damages are satisfied, absent a release or settlement. This accords with Garrett v. Garrett, 128 Ga.App. 594(2), 197 S.E.2d 739 a tort action where the plaintiff first sued two parties for separate and distinct acts of negligence which he alleged ......
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