Hospital Authority of Emanuel County v. Gray

• Decision Date: 04 February 1971
• Docket Number: No. 45804,No. 1,45804,1
• Citation: 181 S.E.2d 299,123 Ga.App. 415
• Parties: HOSPITAL AUTHORITY OF EMANUEL COUNTY v. GRAY
• Court: Georgia Court of Appeals

Page 299

181 S.E.2d 299

123 Ga.App. 415

HOSPITAL AUTHORITY OF EMANUEL COUNTY v. GRAY.

No. 45804.

Court of Appeals of Georgia, Division No. 1.

Feb. 4, 1971.

Rehearing Denied March 5, 1971.

Certiorari Denied April 9, 1971.

W. Ward Newton, Lyons, for appellant.

Oliver, Maner & Gray, Thomas S. Gray, Jr., Savannah, for appellee.

Syllabus Opinion by the Court

DEEN, Judge.

This is an appeal from (a) an order sustaining the motion of cross defendant, Dr. Gray, for judgment on the pleadings against the Hospital Authority of Emanuel County, co-defendant in the main case and plaintiff in the cross action; (b) denying the cross plaintiff's motion to strike amendments to the cross defendant's answer in the main case; (c) denying cross plaintiff's motion for judgment on the pleadings; and (d) its motion for summary judgment on the issue of liability.

Mrs. Fountain brought an action for malpractice naming as defendants Dr. W. E. Gray, Jr., Dr. Herbert R. Frost and Hospital Authority of Emanuel County. The Authority answered setting up various defenses and cross claimed against Dr. Gray on the ground that any negligence was his and that he had not been authorized to use the facilities of the hospital to perform the surgery resulting in the alleged injury, and that the admission of plaintiff to the hospital was in violation of various regulations of the hospital. The sole prayer of the cross complaint was for 'judgment against Dr. W. E. Gray, Jr. for all sums that may be adjudged against cross complainant in favor of Mrs. Fountain.' Thereafter, on March 19, 1969, the plaintiff entered into a covenant not to sue the Authority, as a result of which the Authority was dismissed as a party defendant. On December 30, 1969, a consent order signed by the court and all remaining parties was filed of record, reciting that the plaintiff's claims had been settled, costs of court paid, and the action dismissed with prejudice. In June of the next year, the Authority attempted to amend its pleadings and to seek judgment against Dr. Gray for the sums formerly expended by it to obtain the covenant not to sue. Held:

1. Prior to Ga.L.1966, p. 433 (Code Ann. § 105-2012(1)) one joint and several tortfeasor could not sue the other for contribution unless judgment had been obtained against both. After the amendment of subsection 1, one joint and several tortfeasor cannot sue the other for contribution unless judgment has been obtained and paid off by the one seeking to contribution. Hanar Cab Co., Inc. v. City of Atlanta, 122 Ga.App. 661, 178 S.E.2d 292. This eliminates cases involving voluntary covenants not to sue.

2. Appellant here contends that it is not asking for contribution but is seeking to recover damages against Dr. Gray for sums which it was forced to expend to obtain the covenant not to sue as the cheapest way out of a situation caused solely by the negligence of the co-defendants if negligence was in fact involved. It sought to amend its cross petition and change its prayers so as to proceed on the theory of damages incurred by reason of the lawsuit. However, at the time the case was settled and dismissed in December 1969, all that the appellant sought was a judgment over in the event that a judgment was entered against it. The consent order dismissing the case affirmatively established that thereafter no judgment could be entered against anybody, and the case ceased to be pending at that time. Since it was not pending it could not be amended six months later in an effort to convert it into a damage suit by one co-defendant against another. The cross action is not saved by Code Ann. § 81A-141(a) providing that after the filing of a counterclaim the case cannot be dismissed over the counterclaimant's objection unless the counterclaim (or, as here, cross claim) can remain pending for independent adjudication, because at the time of the dismissal the cross claim was for contribution only and the dismissal of the whole case eliminated this issue.

The ruling of the trial court sustaining the motion for judgment on the pleadings is without error, and the remaining enumerations of error are unnecessary to be considered.

Judgment affirmed.

BELL, C.J., concurs.

PANNELL, J., concurs specially.

PANNELL, Judge (concurring specially).

1. I concur in the result reached by the majority opinion, that is, that the cross claim of the hospital against Dr. Gray was effectively dismissed by the dismissal of the main case, even if it were not dismissed by the dismissal of the hospital as a party defendant. The Code of 1910 (§ 5548) provided: 'A petitioner may dismiss his petition at any time, either in term or vacation, so that he does not thereby prejudice any right of the defendant. If claims by way of set-off or otherwise have been set up by the answer, the dismissal of the petition shall not interfere with the defendant's right to a hearing and trial on such claims in that proceeding.' (Emphasis supplied.) This section was derived in part from a blending of the common law rule and the statute law rule. Harvey v. Boyd, 24 Ga.App. 561(3), 101 S.E. 708. Section 3-510 of the Code of 1933 further modified this particular Code section by combining it with portions of others of the Code of 1910 (§§ 4348 and 5627). Section 3-510 reads as follows: 'The plaintiff in any action, in any court, may dismiss his action either in vacation or term time, if he shall not thereby prejudice any right of the defendant, and if done in term time, the clerk of the court or justice of the peace shall enter such dismissal on the docket. After a plea of set-off or otherwise shall have been filed, the plaintiff may not dismiss his action so as to interfere with said plea, unless by leave of the court on sufficient cause shown, and on terms prescribed by the court.' (Emphasis supplied.) This codification made some change in the language but no change in the law. Were this Code section now in effect and applicable here, an entirely different question would be raised, but this code section has been repealed by Sec. 135 of the Civil Practice Act (Ga.L.1966, pp. 609, 687) and a new section (Section 41 of the Civil Practice Act, Code Ann. § 81A-141) enacted. The new law on voluntary dismissals, applicable to all courts of record, provides: 'Subject to the provisions of section 81A-123(c), of section 81A-166, and of any statute, an action may be dismissed by the plaintiff, without order of court, by filing a written notice of dismissal at any time before verdict. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by this court. A dismissal under this paragraph is without prejudice, except tht a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has twice dismissed in any court an action based on or including the same claim.' It will be noted that the new law eliminates as condition to voluntary dismissal the provision that claimant 'shall not thereby prejudice any right of the defendant,' eliminates the provision that as voluntary dismissal cannot be had without an order of court and the words 'after a plea of set-off or otherwise shall have been filed,' and substitutes in lieu thereof the following: 'If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by this court.' The language 'unless the counterclaim can remain pending for independent adjudication by this court' was taken from the language in the Federal Act, and referred to questions of jurisdiction not relating to venue, such as the amount involved and diversity of citizenship. See Wall v. Connecticut Mutual Life Ins. Co., 2 F.R.D. 244. We have no such problems in the present case as no counterclaim is involved. As I construe Section 41 of the Civil Practice Act, in the particulars here involved, a voluntary dismissal carries the entire case with it, subject to the right of a defendant to object if he has filed a counterclaim, and in that instance only. There is no mention of cross actions, as defined in the new practice Act. It therefore appears that...