Maxwell Bros. of Athens, Inc. v. Deupree Co.
| Decision Date | 31 May 1973 |
| Docket Number | No. 1,No. 48182,48182,1 |
| Citation | 129 Ga.App. 254,199 S.E.2d 403 |
| Parties | MAXWELL BROTHERS OF ATHENS, INC. v. DEUPREE COMPANY et al |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. In a proper case, where the defendant and another are or may have been guilty of unintentional and concurrent acts of negligence which combined to cause damage to the plaintiff, a third party action based on a right of contribution in the event of judgment against the original party defendant is maintainable.
2. A tenant which under written lease accepts premises in an 'as is' condition, assumes responsibility for repairs, and agrees that failure to report any defective condition for which the landlord would otherwise be responsible renders it solely liable for any damages resulting from such condition, was not entitled to maintain a third party action against the landlord when sued because a fire which broke out on its leased premises spread to adjacent property.
Delacruz and Maxwell Brothers were adjoining tenants of commercial property held by the appellee Deupree Company on a long term lease. A fire which started in the Maxwell Brothers warehouse damaged inventory in the Delacruz store, and an action for damages was brought by the latter against Maxwell Brothers and its manager, King. These defendants filed a third party complaint against Deupree Company contending that if the plaintiff's damage was caused by any defect in the warehouse (i.e., an inoperative sprinkler system) this was due to the negligence of the owner. The plaintiff then attempted to join Deupree Company as an additional defendant, but this pleading was stricken on motion. Thereafter, Deupree Company's motion for summary judgment as to the third party complaint was granted and the third party plaintiffs (the original defendants) appeal.
Neely, Freeman & Hawkins, Albert H. Parnell, Atlanta, for appellant.
Erwin, Epting, Gibson & Chilivis, Eugene A. Epting, Athens, for appellees.
1. The appellee's motion for summary judgment raised the question of whether it and the original defendants could properly be found by a jury to be unintentional joint tortfeasors under Code Ann. § 105-2012, as to the plaintiff, in such circumstance that the third-party defendant 'is or may be' liable to the original defendants for any judgment they may be forced to pay. It is true that the right to obtain contribution does not arise until a judgment is entered (Thornhill v. Bullock, 118 Ga.App. 186(2), 162 S.E.2d 886) but if such right may arise the third party action can be maintained under Code Ann. § 81A-114(a), unless barred for some other reason. Nothing to the contrary is held in Craven v. Allen, 118 Ga.App. 462(1b), 164 S.E.2d 358 where the question was whether a jury could return a verdict against joint tortfeasors singly, apportioning the liability unequally between them. Lewis Card & Co. v. Liberty Mutual Ins. Co., 127 Ga.App. 441(1), 193 S.E.2d 856 deals only with appellate procedure and is also not authority to the contrary.
2. Nevertheless, there is always the possibility that even though the plaintiff might, if it elected to do so, recover from various tortfeasors for separate and concurrent acts of negligence on their part, the situation between the alleged tortfeasors themselves may be such that one of them could not recover from the other; and would therefore have no right to implead the other for the purpose of seeking contribution in the event of an adverse judgment. Such is the case here. The lease between the third party plaintiff and the third party defendant contained the following: ...
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Greyhound Lines, Inc. v. Cobb County, Ga.
...Standard Oil was based upon an intentional tort and § 105-2012 does not apply to intentional torts. Maxwell Brothers of Athens, Inc. v. Dupree Co., 129 Ga.App. 254, 199 S.E.2d 403 (1973). The final case which Cobb County cites for the proposition that Georgia law does not allow contribution......
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...209 Ga.App. at 854(2), 434 S.E.2d 769; Roth v. Wu, 199 Ga.App. 665, 666(1), 405 S.E.2d 741 (1991); Maxwell Bros. of Athens, Inc. v. Deupree Co., 129 Ga.App. 254, 256(2), 199 S.E.2d 403 (1973); Bazemore v. Burnet, 117 Ga.App. 849, 851, 161 S.E.2d 924 Golf Club Co., 97 Ga.App. at 131-133(1), ......
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Independent Mfg. Co., Inc. v. Automotive Products, Inc., s. 53136
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