Horton v. Continental Cas. Co.

• Citation: 34 S.E.2d 605,72 Ga.App. 594
• Decision Date: 21 June 1945
• Docket Number: 30896.
• Parties: HORTON v. CONTINENTAL CASUALTY CO. et al.
• Court: Georgia Court of Appeals

34 S.E.2d 605

72 Ga.App. 594

HORTON v. CONTINENTAL CASUALTY CO. et al.

No. 30896.

Court of Appeals of Georgia, Division No. 2.

June 21, 1945

Syllabus by the Court.

1. The judgment for the plaintiff was authorized under the law and the facts.

2. The court did not err in allowing the petition to be amended by substituting the name of Johnson & Co., Inc., suing for the use of the Continental Casualty Company.

3. The payment made by the Continental Casualty Company as insurer of Johnson & Co., Inc., was one under a legal obligation arising out of a verdict and judgment against Horton and Johnson & Co., Inc., jointly, and the Continental Casualty Company was not a volunteer in making such payment.

4. The court did not err in overruling the motion for new trial, or in failing to pass on the oral motion to dismiss.

Clifford R. Wheeless and Oliver C. Hancock, both of Atlanta, for plaintiff in error.

Hirsch Smith, Kilpatrick, Clay & Cody and Sidney Haskins, all of Atlanta, for defendant in error.

SUTTON Presiding Judge.

On January 27, 1944, the Continental Casualty Company filed its petition against W. R. Horton seeking to recover the sum of $109.75 as contribution, together with interest from October 14, 1942, from the defendant as a joint tort-feasor. It was alleged in the petition that, on May 21, 1942, W. R. Horton and Johnson & Co., Inc., were jointly sued in a tort action in the superior court of Fulton County by John Medlock; that said suit alleged the joint negligence of the two defendants, and that they were properly served; that, on October 14, 1942, a verdict and judgment were rendered in favor of the plaintiff, Medlock, and against the defendants jointly in the sum of $200 principal and $19.50 court costs that the judgment was paid off in full by the Continental Casualty Company as insurer of Johnson & Co., Inc.; that said W. R. Horton was in no way covered by the said insurance company and did not in any way contribute to the payment of judgment rendered against him as a joint defendant; and prayed for a judgment against the defendant. On February 10 1944, the petition was amended by striking the name of Continental Casualty Company as plaintiff and substituting therefor the name of Johnson & Co., Inc., suing for the use of the Continental Casualty Company.

The defendant, now the plaintiff in error, filed his plea and answer in which he admitted that he was subject to the jurisdiction of the court, that he had been sued jointly with Johnson & Co., Inc., in a tort action in Fulton superior court, that a joint verdict and judgment had been rendered against him and Johnson & Co., Inc., as alleged in the petition; but denied that he was liable to the plaintiff for contribution. The defendant filed a general demurrer to the petition on the grounds it failed to set forth a cause of action, and that there was a misjoinder of parties plaintiff; the demurrer was overruled, and no exception was taken thereto.

When the case came on for trial and after the announcement of ready on both sides, counsel for the defendant made an oral motion to dismiss the petition on the ground that there was no cause of action set forth. The case was tried before the judge upon an agreed statement of facts without the intervention of a jury, and a judgment was rendered by him against the defendant for the amount sued for. No ruling was made on the oral motion to dismiss above referred to. The defendant filed exceptions pendente lite to the court's refusal to dismiss the petition on the oral motion on the ground that no cause of action was set forth, and also filed a motion for new trial upon the general grounds. The trial judge overruled the motion for new trial, and the defendant excepted.

The agreed statement of facts upon which the case was tried is substantially the facts as above set out. In addition thereto the plaintiff in error introduced in evidence two releases, substantially the same, one signed by John Medlock, minor and plaintiff in the former action, and the other was executed by Mr. and Mrs. D. G. Medlock as parents and guardians of John Medlock, minor, the consideration in each release being $85. The releases stipulated that 'I * * * do hereby release and forever discharge the said W. R. Horton/Johnson & Co. and assigns of all and from all claims, demands, damages, actions, or causes of action on account of any and all injuries to said minor now existing or which may hereafter arise from above described accident to said minor.' The releases were executed on January 28, 1942, and January 29, 1942, respectively, and prior to the filing of the suit by Mrs. Thelma Medlock, as next friend, etc., on April 1, 1942.

The plaintiff in error carried this case to the Supreme Court, which transferred it to this court, and while the case was pending in the Supreme Court Johnson & Co., Inc., filed a motion asking that its name be stricken as a party defendant in error on the grounds that it did not consent to being made a party plaintiff in the lower court suing for the use of Continental Casualty Company; and that it had no knowledge of such fact until it was served with a copy of the bill of exceptions.

1. The Code, § 37-303, provides: 'In cases of joint, joint and several, or several liabilities of two or more persons, where all are equally bound to bear the common burden, and one has paid more than his share, he shall be entitled to contribution from the others; and whenever the...