Greyhound Lines, Inc. v. Cobb County, Ga.

• Decision Date: 02 August 1982
• Docket Number: No. 81-7903,81-7903
• Parties: GREYHOUND LINES, INC., Plaintiff-Appellee, v. COBB COUNTY, GEORGIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1327

681 F.2d 1327

GREYHOUND LINES, INC., Plaintiff-Appellee, v. COBB COUNTY, GEORGIA, Defendant-Appellant.

No. 81-7903.

United States Court of Appeals, Eleventh Circuit.

Aug. 2, 1982.

Awtrey & Parker, Toby B. Prodgers, Marietta, Ga., for defendant-appellant.

Sewell K. Loggins, Michael V. Elsberry, Atlanta, Ga., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before GOLDBERG ^*, HILL and HATCHETT, Circuit Judges.

JAMES C. HILL, Circuit Judge:

This appeal raises two questions, each as troublesome for us today as they have been for first year law students since the days of Justinian. First, we must determine what is a cause of action for the purposes of res judicata. Second, if res judicata does not bar the present claim, we must determine whether a joint tortfeasor's active negligence precludes his claim for contribution. As this is a diversity action, we do not write on an unmarked slate. The markings, however, are less than clear.

A brief review of the facts giving rise to this appeal illustrates the problem. On September 12, 1975, a Greyhound bus and a truck owned by Cobb County collided. As a result of the accident, several bus passengers brought suits against Greyhound for the injuries they had sustained. Before most of the suits were tried, however, Greyhound settled the claims.

Cobb County's res judicata defense stems from a suit brought against Greyhound by Dunn, a passenger at the time of the accident. Upon being sued by Dunn, Greyhound filed a third party complaint against Cobb County seeking to recover the damage to its bus and contribution for the claim asserted by Dunn. Although Greyhound settled the claim by Dunn, the third-party complaint went to trial. The jury subsequently apportioned negligence between Greyhound and Cobb County, and judgment for $10,000 was entered for Greyhound. However, the court granted Cobb County's motion for judgment notwithstanding the verdict on Greyhound's claim for contribution.

Three months after judgment was entered in the Dunn suit, Greyhound filed this diversity action for contribution from Cobb County on other settlements which had, by then, been paid by Greyhound. Because the Dunn judgment conclusively established Cobb County's liability as a joint tortfeasor, Greyhound asked only that Cobb County make contributions with respect to the settled claims.

The district court granted Greyhound's request. Rejecting the defenses asserted by Cobb County, the court held that res judicata did not bar Greyhound's claim for contribution and that Greyhound's active negligence was likewise no bar to contribution. Greyhound Lines, Inc. v. Cobb County, Georgia, 523 F.Supp. 422 (N.D.Ga.1981). The district court granted summary judgment for Greyhound and ordered Cobb County to contribute almost $28,000 toward payment of the settled claims. Cobb County now appeals. We affirm.

I. RES JUDICATA

In 1846, the principles of res judicata were first used by the Georgia courts to preclude a party from relitigating a previously adjudicated claim. Bostwick v. Perkins, 1 Ga. 136 (1846). The 1910 Civil Code later codified the common law rule as it was explained in Watkins v. Lawton, 69 Ga. 671 (1882). Ga.Code § 4336 (1910). Today's statutes mirror the 1910 provisions. ¹ Section 110-501 provides that:

A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside.

Ga.Code § 110-501 (1978).

Section 110-501, as it has been construed by the courts of Georgia, requires a party pleading res judicata to satisfy three elements. First, the party against whom the doctrine is invoked must be the same or one in privity with a party to the prior adjudication. Second, there must be an identity of the cause of action in the two suits. And third, there must be an adjudication by a court of competent jurisdiction. Lewis v. Price, 104 Ga.App. 473, 122 S.E.2d 129 (1961).

In the present action Cobb County attempts to invoke the doctrine of res judicata to bar Greyhound's claim for contribution. Cobb County argues that because Greyhound could have made its contribution claims in the Dunn suit, but did not do so, it is now barred from bringing those claims.

Two of the three requisites of res judicata are clearly present. The subsequent suit by Greyhound is between the same parties and there is an adjudication by a court of competent jurisdiction. ² Is there an identity of the cause of action?

A. The Applicable Standard

The district court held that the claims for contribution constitute a cause of action which is separate from the claim for property damage upon which Greyhound obtained judgment in the Dunn suit. Cobb County argues that the district court erred in applying the "same cause of action" test to these claims. The correct analysis, Cobb County asserts, is whether there is an "identity of subject matter." Cobb County construes recent Georgia Supreme Court decisions as rejecting the "same cause of action" test in favor of one requiring only an "identity of subject matter." Those recent Georgia Supreme Court decisions are Pope v. City of Atlanta, 240 Ga. 177, 240 S.E.2d 241 (1977), and Hill v. Wooten, 247 Ga. 737, 279 S.E.2d 227 (1981).

Those cases, however, are not as broad as Cobb County would have us read them. Pope involved a party's failure to present a state law claim in a federal suit where the state claim could have been heard under the federal court's pendent jurisdiction. The Pope Court decided only that where "the federal court would have retained jurisdiction of the pendent state claims had they been raised, then a subsequent suit in state court would be barred by res judicata ...." 240 Ga. at 179, 240 S.E.2d at 243 (emphasis in original).

Hill v. Wooten is more to the point. In that case Wooten attempted to avoid an adverse judgment in federal court on his civil rights claims by suing the same defendant and the defendant's bondsman in state court on claims of assault and breach of bond of office. The Georgia Supreme Court held that res judicata barred the state law claims. 247 Ga. at 738, 279 S.E.2d at 229. Again, however, the Georgia Court decided only that the federal court would have heard the assault and breach of bond claims under its pendent jurisdiction had those claims been presented. The rule laid down in Pope thus required the Hill Court to give the federal court judgment res judicata effect.

Neither Pope nor Hill call for the abandonment of the "same cause of action" analysis which has been employed by Georgia courts without deviation. See, e.g., Brown v. Brown, 212 Ga. 202, 91 S.E.2d 495 (1956) (res judicata applies only to same cause of action); Woods v. Delta Airlines, Inc., 237 Ga. 332, 227 S.E.2d 376 (1976) (res judicata not applicable to different causes of action). ³ We conclude that the courts of Georgia would not overrule that standard by implication. We shall not do so for this case.

B. Cause of Action Analysis

For res judicata to bar the contribution claims in this case the same cause of action must have been previously adjudicated. In the prior suit between Greyhound and Cobb County, the Dunn action, Greyhound recovered for damages to its bus. Here, Greyhound seeks contribution for claim settlements it has paid. ⁴ We must decide then whether the property damage and contribution claims constitute the same cause of action for the purposes of res judicata. We conclude that they do not.

Before 1966 a tortfeasor could not seek contribution from a joint tortfeasor unless they were sued jointly, judgment was rendered against both of them, and one paid more than his pro rata share of the judgment. Mashburn & Co. v. Dannenburg Co., 117 Ga. 567, 44 S.E. 97 (1903); Autry v. Southern Railway, 167 Ga. 136, 144 S.E. 741 (1928). Where joint tortfeasors were not bound by a common judgment, the Georgia courts would not hear and determine claims between those in pari delicto. In 1966 the Georgia legislature made two significant changes in that state's rules of contribution. First, the General Assembly eliminated the requirement that the tortfeasor from whom contribution is claimed be one against whom judgment had been entered. Ga.Code § 105-2012(1) (1978). Thus, a tortfeasor can now assert a claim for contribution against a joint tortfeasor who had not been sued by the original plaintiff. McMichael v. Georgia Power Co., 133 Ga.App. 593, 211 S.E.2d 632 (1974).

The state legislature's second modification dealt with third party practice in Georgia. With the adoption of the Civil Practice Act in 1966 the Georgia lawmakers permitted a tortfeasor to bring in as a third party defendant one "who is or may be liable to him for all or part of the plaintiff's claim against him." Ga.Code § 81A-114(a) (CPA § 14) (1978). (emphasis added). This provision meant that one tortfeasor could implead a second joint tortfeasor without a judgment's having been entered against the former. Gosser v. Diplomat Restaurant, Inc., 125 Ga.App. 620, 188 S.E.2d 412 (1972). In short, a defendant tortfeasor after 1966 has both a substantive right and procedural mechanism to assert contribution claims against joint tortfeasors.

The 1966 changes have an important bearing upon the present action. For it seems that Greyhound might have sued Cobb County for contribution in the Dunn suit. ⁵ Thus, while Gosser holds that an alleged tortfeasor, sued by the damaged plaintiff but not yet subjected to judgment, may bring a third party complaint against one who "may be liable to him for all or part of the plaintiff's claim against him," it is not clear that a third party action could assert claims for contribution on account of established or potential liabilities to others than the particular plaintiff in...